Ba--Duties/remedies Between P And A

Front 1

M/S relationship--M's duites to S

Back 1

1. safe working conditions
2. compensation
3. duty to warn of unsafe working conditions
4. duty to warn of unsafe working conditions only is the E would not discover them by themselves using reasonable care

Front 2

M/S relationship--S's duties to M

Back 2

S cannot recover from M for his own negligence



Contributory negligence rules apply--no recovery if S's negligence was a direct or partial cause of the injury--depends on jurisdiction

Assumption of risk may allow M to avoid liability if M can prove that S had actual knowledge UNLESS M coerced S to work by ensuring that the unsafe working conditions would be fixed

Front 3

M/S relationship--S's duties to M--Fellow Servant Rule

Back 3

Fellow Servant Rule--M not responsible for injuries to employees resulting from their own negligence
-requirements
1. same master
2. same enterprise
3. scope of employment
-look to tortfeasor for recovery
-does not apply to non-servants i.e. an agent injured by a servan

Front 4

M/S relationship--S's duties to M--worker's comp

Back 4

S recovers provided that injury occurred within the scope of employment
-only need to prove that injury occured on the job
-no fault system

Front 5

Duties of P to A

Back 5

P owes duties resulting from (1) K or (2) fiduciary relationship

-express k duties
-Cooperation
-Compensation
-Reimbursement/indemnification
-Avoidance of negligence

Front 6

Duties of P to A--express K duties

Back 6

A entitled to K remedies:

Front 7

Duties of P to A-Duty of Cooperation

Back 7

P must assist A in performance of his duties and must not do anything wrongful to prevent such performance i.e. intruding on territory of A's sales territory

Remedy--Indemnification for losses or damages sustained in preforming for P

Front 8

Duties of P to A--when duty to indemnify A

Back 8

Court looks at customs of trade to determine when indemnification is appropriate
-for payments made on behalf of principal
-K's signed by A on behalf of P
-Payments properly made to subagents
-litigation for defending expenses due to action by either P or 3P
-other situations where A spends money on behalf of P

Front 9

Duties of P to A--when NO duty to indemnify A

Back 9

-A performs illegal, unauthorized or negligent acts not for the benefit of P
-A incurs injury not as a result of violation of a duty by P
-A suffers loss as a result of his own negligence
-A acts against public policy or illegally
-normally no right to litigation expenses when filing an action even a rightful one against P

Front 10

Duties of P to A-Duty of Compensation

Back 10

A entitled to possessory lien

Front 11

Duties of P to A-Express K duties--wrongful discharge

Back 11

A can:
1. sue for damages and terminate performance
2. affirm agency K and sue for compensation, indemnity, etc.
3. disaffirm K and sue for unjust enrichment

-damages must be forseeable and A has duty to mitigate

Front 12

Duties of P to A-Duty to avoid negligent/intentional tortious acts injuring A

Back 12

A can bring tort action

Front 13

Duties of A to P--

Back 13

Express K duties
Fiduciary Duties

Front 14

Duties of A to P--Express K duties and duty to perform

Back 14

-in addition to express duties stated in agency relationship there are implied duties by law such as

duty to exercise reasonable care in performance
-A held to skill which A is represented as having in the K
-if K is silent standard is determined in light of local community standards based on trade and custom.

-owed to corps and shareholders
-

exception--gratuitous agent--no K duty but once, A begins performance, generally held to same duty of performance. also subject to tor liability for performing improperly or if P detrimentally relies on A's promise to perform

Front 15

Duties of A to P-Fiduciary Duties

Back 15

1. Duty to notify
2. duty of loyalty
3. Duty of Obedience

Front 16

Duties of A to P-Fiduciary Duties--Duty to notify

Back 16

of all matters that come to A's knowledge that affect the subject of the agency b/c all notice of such matters are imputed to the P

Front 17

Duties of A to P-Fiduciary Duties--Duty of Obedience

Back 17

A liable to P for loss that occurs as result of breach of this duty

Front 18

Duties of A to P-Fiduciary Duties-Duty of loyalty

Back 18

A required to act SOLELY for benefit of P
examples
1. using P's personal property for a's own benefit
2. taking a position adverse to P
3. can't use confidential information for his own benefit
4. Can't compete with P

Front 19

Duties of A to P-Fiduciary Duties-Duty of loyalty--Accounting

Back 19

A must account to P for all profits made through agency relationship

Front 20

Duties of A to P-Fiduciary Duties-Duty of loyalty--Property

Back 20

A has authority to deal with P's property but does not have power to issue DEBT

Front 21

Duties of A to P-Fiduciary Duties-Duty of loyalty--Negotiable Instruments

Back 21

A must have written permission to bind the P through the issuing of negotiable instruments

-can have implied authority where the form of the neg instrument fairly indicates to the comon eye that the A is acting as an agent or in a representative capacity AND A was in fact duly authorized

Front 22

Duties of A to P-Fiduciary Duties-Duty of loyalty--Acting as an adverse party to P

Back 22

when P acts for his own interest or for the interest o another party adverse to the principal
-if there is a conflict of interest, A has duty to disclose to P or refuse to act
-if neither party knew that A was acting for another, K is avoidable by either party,but damages are only recoverable if there is wrongdoing by an agent.

Front 23

Duties of A to P-Fiduciary Duties-Duty of loyalty--Dual Agent

Back 23

A cant act for more than 1 p i.e. buyer and seller unless it is clear that both parties are fully informed and approve--otherwise A is acting adversely to P b/c of conflict b/t buyer and seller... A has burden of proof

If 2 interests are not adverse, A can act for both

Front 24

Duties of A to P-Fiduciary Duties-Duty of loyalty--Confidential info

Back 24

A cannot use confidential info[trade secrets, customer lists, inventions, etc. for personal benefit or divulge this information to others.

Applies even after agency relationship is terminated

Front 25

Duties of A to P-Fiduciary Duties-Duty of loyalty--Confidential info--Trade Secrets

Back 25

-useful only if remains a secret
-A has duty not to disclose, if he violates this duty, he must account to P for profits made in sale or the use of the secret info

Front 26

Duties of A to P-Fiduciary Duties-Duty of loyalty--Confidential info--Inventions

Back 26

If employee invents something using employer's facilities, tools, etc, employer can us the invention without paying royalties

use is non-exclusive--patent holder can do whatever they want with it.

Front 27

Duties of A to P--remedies available for breach of express K duties

Back 27

P entitled to K remedies including,
-damage to P's position AND loss of profits
-damages include cost of P's ∆ and recovery granted to 3P as a result of A's breach
-burden is on P of proving the forseeability of damages and expected profits
-A can also be held liable for interfering with P and 3P performance

Front 28

Duties of A to P--remedies available for breach of Performance duty; gratuitous Agent

Back 28

-judged by whether reasonable effort was made
-with a gratuitous agent, remedy based on detrimental reliance or tort

Front 29

Duties of A to P--remedies available for breach of fiduciary duties[care, loyalty, obedience

Back 29

1. damages
2. rescission of k
3. withhold compensation
P must show either prospective or actual injury

Front 30

Duties of A to P--remedies available for breach of K or fiduciary duty--discharge

Back 30

P can immediately terminate agency without liability for wrongful termination
-P must terminate upon learning of the breach or he is deemed to have condoned the breach and can no longer bring an action based on that particular breach.

Front 31

Duties of A to P--remedies available for breach of accounting

Back 31

accounting

Front 32

Duties of A to P--remedies available for A's acting as an adverse party to p

Back 32

(1) avoid transaction if 3P knew of the conflict
or
(2) sue A for breach of duty of loyalty

Front 33

Duties of A to P--remedies available for P when 3P knowingly employs the A of another to co duct a transaction

Back 33

3P liable to original P for rescission of K or damages based on theory of interfering with K relations

Front 34

Duties of A to P--remedies available for dual agent failing to notify

Back 34

P can bring action for breach of duty of loyalty

Front 35

Duties of A to P--remedies available for using confidential trade secrets

Back 35

P can bring damages for breach of loyalty and INJUNCTION

Front 36

Duties of A to P--remedies available for Specific Performance--

Back 36

very rare !?!?!?!?!?

Front 37

Duties of A to P--remedies available for tort

Back 37

A is liable for his own torts

when P is successfully sued for A's torts, he can seek indemnification against A

Front 38

Duties of A to P--Other remedies available--examples

Back 38

Restitution--example?

Front 39

Duties of A to P--remedies available for when A claims ownership of P's property

Back 39

conversion

Front 40

Defenses available to A

Back 40

1. Incapacity
2. Minority
3. Insanity
4. Partial Incapacity
5. Illegality
6. Impossibility
7. P's conduct which affects A's liability
8. other--bankruptcy, laches, set-off, sol, statute of frauds

Front 41

Defenses available to A--Incapacity

Back 41

look to (1) Mental Capacity (2) Age (3) intoxication (4) physical incapacity.
measured by:
1. to what extent was A incapacitated?
2. Did the activity require full capacity?

Front 42

Defenses available to A--Minority

Back 42

Minority A can disaffirm voidable K and avoid liability
but in some jurisdictions, minor is liable for his torts

Front 43

Defenses available to A--Insanity

Back 43

if activity requires state of mind beyond that which agent possesses, he can;t be held liable for non-performance

Front 44

Defenses available to A--Partial incapacity

Back 44

Partial incapacity for an activity not requiring full capacity fails as a ∆

Front 45

Defenses available to A--Illegality

Back 45

A not liable if activity was (1) illegal at time of K OR (2) performance has subsequently become illegal
-knowledge/awareness not required i.e. doesn't matter if neither party knew

Front 46

Defenses available to A--Impossibility

Back 46

A has duty to inform P if performance is impossible

Failure to inform results in breach of K

Front 47

Defenses available to A--P's conduct that affects A's liability

Back 47

1. contributory negligence
2. material breach of K by P--removes burden of A to perform
3. Failure of P to mitigate damages
-not a complete bar--> only bars those damages which P failed to mitigate
4. Waiver or release by P
-ratifying condoning conduct relieves A [unless ratification was required as duty to mitigate damages]