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36 Cards in this Set
- Front
- Back
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What is the agency relationship defined as?
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Agency is a relationship, which results from the manifestation of consent by one person to another that the other shall act on his behalf, subject to his control and consent by the other so to act.
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Gorton v. Doty
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n INSTANT FACTS Gorton (P) was injured in an automobile accident after Doty (D) loaned her vehicle to Garst to transport Gorton (P) and others to a football game.
n BLACK LETTER RULE An agency relationship results from one person's consent that another will act on his behalf and subject to his control, and the other person's consent so to act. |
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A. Gay Jenson Farms Co. v. Cargill, Inc.
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n INSTANT FACTS The plaintiffs entered into grain contracts with Warren Grain & Seed Co., which was financed and controlled by Cargill, Inc. (D), a separate entity.
n BLACK LETTER RULE A creditor that assumes control of its debtor's business may become liable as principal for the debtor's acts in connection with the business. As indicated by the court's holding, a lender may be liable for a borrower's debts if the lender exhibits control over the borrower's business. While banks and other creditors often engage in lending practices that direct a certain sum of money be used a particular manner, lender liability does not automatically arise. Generally, the lender is liable if its control affects the borrower's management decisions beyond those necessary merely to protect the lender's investment. |
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Humble Oil & Refining Co. v. Martin
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n INSTANT FACTS Martin (P) was injured by a vehicle that rolled away from the service station owned by Humble Oil & Refining Co. (D), but operated by another person under contract.
n BLACK LETTER RULE One who maintains control over a business enterprise's operation, even if it entrusts the operation to one acting without meaningful discretion, is liable as a principal for the negligence of those entrusted with his business. A franchisor's degree of control over the franchise operations is a question of fact. There is no bright line distinguishing between the control that amounts to a master-servant relationship and the control that establishes an independent contractor relationship. Instead, the fact finder must weigh all evidence to determine whether the franchisor displays a sufficient measure of control over the business operations to hold him liable for the franchisee's actions. |
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Hoover v. Sun Oil Co
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n INSTANT FACTS Hoover (P) was injured when his car caught fire while a service station employee was fueling it.
n BLACK LETTER RULE Agency arises if a principal retains the right to control the details of the day-to-day operation of the agent's business. |
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What is the agency relationship defined as?
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Agency is a relationship, which results from the manifestation of consent by one person to another that the other shall act on his behalf, subject to his control and consent by the other so to act.
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Gorton v. Doty
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n INSTANT FACTS Gorton (P) was injured in an automobile accident after Doty (D) loaned her vehicle to Garst to transport Gorton (P) and others to a football game.
n BLACK LETTER RULE An agency relationship results from one person's consent that another will act on his behalf and subject to his control, and the other person's consent so to act. |
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A. Gay Jenson Farms Co. v. Cargill, Inc.
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n INSTANT FACTS The plaintiffs entered into grain contracts with Warren Grain & Seed Co., which was financed and controlled by Cargill, Inc. (D), a separate entity.
n BLACK LETTER RULE A creditor that assumes control of its debtor's business may become liable as principal for the debtor's acts in connection with the business. As indicated by the court's holding, a lender may be liable for a borrower's debts if the lender exhibits control over the borrower's business. While banks and other creditors often engage in lending practices that direct a certain sum of money be used a particular manner, lender liability does not automatically arise. Generally, the lender is liable if its control affects the borrower's management decisions beyond those necessary merely to protect the lender's investment. |
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Humble Oil & Refining Co. v. Martin
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n INSTANT FACTS Martin (P) was injured by a vehicle that rolled away from the service station owned by Humble Oil & Refining Co. (D), but operated by another person under contract.
n BLACK LETTER RULE One who maintains control over a business enterprise's operation, even if it entrusts the operation to one acting without meaningful discretion, is liable as a principal for the negligence of those entrusted with his business. A franchisor's degree of control over the franchise operations is a question of fact. There is no bright line distinguishing between the control that amounts to a master-servant relationship and the control that establishes an independent contractor relationship. Instead, the fact finder must weigh all evidence to determine whether the franchisor displays a sufficient measure of control over the business operations to hold him liable for the franchisee's actions. |
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Hoover v. Sun Oil Co
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n INSTANT FACTS Hoover (P) was injured when his car caught fire while a service station employee was fueling it.
n BLACK LETTER RULE Agency arises if a principal retains the right to control the details of the day-to-day operation of the agent's business. |
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Murphy v. Holiday Inns, Inc.
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n INSTANT FACTS Murphy (P) slipped and fell in a motel owned and operated by a franchisee under a license agreement.
n BLACK LETTER RULE If a franchise contract so regulates the activities of the franchisee as to vest the franchiser with control within the defini¬tion of agency, the agency relationship arises even if the parties expressly deny it. Although the court determined that there was no genuine issue of material fact concerning Holiday Inn's control over the motel, in the same year the Fifth Circuit Court of Appeals held that, under a similar Holiday Inn franchise agreement, a question of fact did exist. In that case, Holiday Inn had reserved the right to deny credit to a customer, and a motel clerk wrongfully denied the customer credit. In that respect, the court held that a jury should determine whether Holiday Inn maintained sufficient control under its franchise agreement |
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Ira S. Bushey & Sons, Inc. v. United States
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n INSTANT FACTS A drunken sailor employed by the U.S. Coast Guard caused damage to the plaintiff's drydock while returning to the ship from leave.
n BLACK LETTER RULE Respondeat superior imposes liability on an employer for an employee's conduct if the employer created the risk that the conduct would occur. Vicarious liability, including respondeat superior, places liability on a master for the actions of another, even if the master did not actually cause the damage suffered. The doctrine has been justified on primarily two grounds. First, the master, who has the right of control over his servant's actions, is in a better position to prevent the damage from occurring. Second, the master generally has the financial means to cover the damages suffered by the innocent third party. However, upon assuming the responsibility to the third party, the master generally maintains a right of indemnification against its guilty servant. |
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Majestic Realty Assoc., Inc. v. Toti Contracting Co.
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n INSTANT FACTS Majestic Realty Associates, Inc. (P) suffered property damage to its building caused by the negligent demolition of an adja-cent building.
n BLACK LETTER RULE Ordinarily, if a person engages a contractor, who conducts an indepen-dent business by means of his own employees, to do work not itself a nuisance, the person is not liable for the contractor's negligent acts in per-forming the contract. Typically, if a person engages a contractor to do work that does not in itself constitute a nuisance, the person is not liable for the contractor's negligent acts. However, this court recognizes that a property owner is under a non-delegable duty to maintain its property in a manner that safeguards innocent third parties from injury or damage. This duty extends beyond those third parties actually on the property owner's premises to adjoining landowners, passersby, and others in the general vicinity |
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Mill Street Church of Christ v. Hogan
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n INSTANT FACTS Hogan (P) was injured after he was hired by a church employee to paint the inside of the church.
n BLACK LETTER RULE Implied authority is actual authority that the principal intended the agent to possess and includes such powers as are practically necessary to carry out the delegated duties The distinctions between actual authority, apparent authority, and implied authority can be confusing. The crucial facts distinguishing the three are the knowledge of the parties involved. If an agent knows he has a principal's authority, actual authority exists. If actual authority does not exist, but a third party reasonably believes from the principal's actions that authority exists, apparent authority is created. Finally, implied authority is actual authority that the principal never formally conferred, but that can be inferred based on the authority granted and past conduct between the principal and the agent. If the third party knows that the authority does not in fact exist, any inference of authority is destroyed |
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Three-Seventy Leasing Corp. v. Ampex Corp
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n INSTANT FACTS Three-Seventy Leasing Corp. (P) executed a document provided by an Ampex Corp. (D) representative for the purchase of computer leasing equipment, but Ampex (D) never executed the document.
n BLACK LETTER RULE An agent has apparent authority sufficient to bind the principal when the principal's acts would lead a reasonably prudent person to suppose that the agent had the authority he purports to exercise. |
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What Are the 8 factors that Show Control?
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1. Ability to hire and fire-Principle
2. Set Hours of operation-Principle 3. Set the rate of pay-P 4. Supervise day to day operations 5. Responsible for the results-IC 6. Pay for liability insurance 7. Pay taxes 8. Ability to pursue other activities |
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For an agent to not be liable on a Contract what must he do?
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Include a signature bloc that says your signing on behalf of the principle.
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What are the 2 types of financial statements?
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Audited and Unaudited
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What is the agents obligation to the principle?
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The agent has a fiduciary obligation to the principle that goes one way.
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How do you find a conflict of interest?
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When your benefit is in competition with the principle.
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What happens when an agent receives money on the job?
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An agent who receives money as part of his employment is obligated to give all the money to his principle and if he doesn't then its a breach of the fiduciary obligation.
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Is having two jobs and one of them is in competition with the other a breach of the fiduciary duty?
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YES.
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What are the elements of a partnership?
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1. Association of 2 or more people
2. to carry on a business as co-owners for profit. There is no intent in the definition so you can be in a partnership unintentionally through your conduct. The Statute is a default statute and you can contract otherways. |
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Partnership by estoppel?
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A PS implied by law when one or more persons represent themselves as partners to a 3d party who relies on that representation.
A person who becomes this is liable for any credit extended to the partnership by a 3d party. |
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What are the Two types of transactions?
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1. Arm's length-(buyer beware) no Fiduciary obligations and its done b/w equals and one party gets a better deal
2. Fiduciary obligation b/w the parties- You have a duty to disclose etc. |
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Joint venture v. Partnership
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JV: Arm's Length transaction. No Fiduciary obligations.
Partnership: Fiduciary Obligations all over the place. |
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When you want to Leave a partnership to start a business what things can you lawfully do without breaching your fiduciary duty?
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Get financing, get office space, hire secretary, get letterhead printed.
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Fair Charge
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If you take client/case with you when leave PS you owe a faircharge.
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Can you have a PS with no Fiduciary obligations?
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Yes, if you write it this way. The Statute is a default statute.
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If you have an alcoholic as a partner in a lawfirm, what can you do?
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Performance evaluation, take cases away by assigning another partner to work with them, asses files, you dont have to disclose inorder to tell him you have to get the other partner to consent. Lawlis case.
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What are the two ways to look at partnership property?
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Entity theory-Everything is one entity and belongs to the PS.
Aggregation theory-aggregation of all the property of all the partners. once your a partner your always a partner. |
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How do you leave a PS under Entity theory?
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provide a quitclaim deed and your released
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How do you leave a PS under Aggregate theory?
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ask for indemnification because without this you will be liable. so if in aggregation state you want/need quitclaim deed + indemnification
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What should you put in a PS agreement to solve problems b/w 2 partners?
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Arbitration, mediation, divide interest 49/51%, Appoint someone who knows about the business like an attorney or accountant.
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What is the worst type of PS to have?
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One with only two ppl and provision for deadlock.
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Inherent agency
Where do you look for the source of authority? |
Job description,
letter of instruction, bylaws of the corporation, certificate of incumbancy, certificate of incorporation, company manual. |
