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47 Cards in this Set
- Front
- Back
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What law is Agency govern by?
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State common law of the law of agency.
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What is an Agency?
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is a consensual relationship in which one person acts as a representative or act in behalf of another person with power to affect the legal rights and duties of the principal
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What does an Agency do?
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is one who represents another, the principal in dealings with a third person
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When dealing with a third person what does a agency do?
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the agent acts for and in the name and place of the principal, who, along with the third person, is, a party to the transaction
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must the existence and identity of the principal be disclosed?
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Yes the existence and identity of the principal are disclosed, the agent acts not as a party but simply as an intermediary.
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What is the scope of authority granted to an agency?
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the agent may negotiate the terms of contracts with others and bind her principal to such contracts.
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Can the agency be negligent?
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yes, an agent who is an employee in conducting the business of her principal exposes the principal to tort liability for injury and loss suffered by third persons.
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Can a person authorize another to do an illegal act?
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No, any such agreement is illegal and unenforceable. also a person may not appoint an agent to perform acts that are so personal that their performance may not be delegated.
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What is employment relationship?
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All employees are agents, even those employees not authorized to contract on behalf of the employer or otherwise to conduct business with third parties.
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What is an independent contractor?
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Although the principal has the right of control over the agent, the principal does not control the manner and means of the agents performance.
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What is an example of an agent that is an independent contractor?
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an attorney retained to handle a particular transaction. other examples are autioneers, brokers, and factors.
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Are all independent contractors agents?
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No, because the person hiring the independent contractor has no right or control over independent contractors.
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are principals liable for the torts commited by employees in the scope of their employment?
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Yes, in addition, the obligations of a principal under numerous federal and state statutes apply only to agents who are employees.
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What do these statutes cover?
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labor relations, employment discrimination, disability, employee safety, workers compensation, social security, minimum wage and unemployment.
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What is an agency relationship?
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it is a fiduciary relationship that arises when one person manifests assent to another person that the agent shall act on the principal's behalf and subject to the principal's control. as so to act
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What is the agency relationship that involves three basic elements?
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assent, control by the principal and the agent's acting on behalf of the principal.
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What is an objective test?
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if the principal requests another to act for him and indicates that the other is to act without further communication, and the other consents to act, the relation of the principal and agent exists.
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what is a gratuitous agency?
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An agency created without an agent's right to compensation.
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What is agency by estoppel?
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a person held liable as a principal, even though no actual agency has been created, inorder to protect third partieis who justifiably rely on the reasonable belief that a person is an agent and who act on that belief to their detriment.
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When does an agency by estopple arise?
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1. a person intentionally or carelessly causes a third party to believe that an agent has authority to act.
2. the principal has notice of the third party's belief and does not take reasonable steps to notify 3. the third party reasonably and in good faith relies on the appearances created by the principal 4. the third party justifiable and detrimentally changes her position in reliance on the agent's apparent authority. |
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when does a contract of agency must be in writing?
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an agent for a period of one year.
some states an agent to sell land. many state equal dignity a principal must have in writing the right to enter into contracts |
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What is a power of attorney?
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is a formal entering from a principal to agent, known as atty at fact as well as to a third party
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Can a power of attorny appoint an agent?
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yes, not only to execute a contract for the sale of the principals real estate but to execute the deed.
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what is a durable power of attorney?
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is a written instrument that expresses the principal's intention that the agent will become effect upon the principal's subsequent incapacity.
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The agent's liability?
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depends upon the capacity to contract. although the contract of agency may be voidable, an authorized contract between the principal and the third person who dealt with the agent is valid
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What is an electronic agent
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it is not a person and so it can not be an agent but it initiates an action without review of a person.
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What does the E-Sign Act do?
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makes the electronic records and sigs valid and enforceable.
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What does E-Sign specifically exclude
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wills, codicils, and testamentary trusts
adoptions, divorces and family law the UCC other than sales and leases of goods |
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What is a fiduciary duty to principal?
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the agent owes his principal the duties of obedience, good conduct, diligence, and loyalty; the duty to inform; and the duty to provide an accounting.
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Is the agent subject to liability?
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yes for loss caused to the principal by any breach of duty
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What are the duties of agent to principal?
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duty of obedience
duty of good conduct duty of diligence duty to inform duty to account fiduciary duty duty not to compete duty to account for financial benefits |
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What act that an agent can do that may seem as a breach but is not a breach?
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acts in good faith
discloses all material facts that the agent knows, has reason to know, or should know otherwise deals fairly with the principal |
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what can a agent do that would be a conflict of interest?
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dealing on behalf on of the principal of an adverse party in a transaction and may not act on a personal interest
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What is self-dealing?
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an agent has a duty not to deal with the principal of an adverse party in a transaction connected with the agency relationship. thus an agent who is employed to buy for a principal may not buy for himself without the principal's consent
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what is duty not to compete?
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during the agency relationship an agent must not compete with his principal or act on behalf or otherwise assist any of the principal's competitors
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What is misappropriation?
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an agent may not use property of the principal for the agaen't own purposes or for the benefitof a third party
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what is confidential information?
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an agent may not use or disclose confidential info obtained in the course of the agency for his own benefit or those of a third party.
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what is duty to account?
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an agent has a duty to keep and render accounts to the principal of money or property received or paid out on the principal's account
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what is duty to account for financial benefits?
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an agent has a duty not to acquire any fiancial or other material benefits in connection with transactions conducted on behalf of the principal.
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What are the principal's remedies
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an agent who violates his fiduciary duty is liable to his principal for breach of contract, in tort for losses caused and possibly punitive damages, and in restitution for profits he made or property he received in breach of fiduciary duty.
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duties of principal
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both in contract and tort law in which the principal owes to the agent. As with any party to contract, a principal is under a duty to perform his part of the contract according to its terms.
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Contractual duties
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an agency relationship may exist in the absence of a contract between the principal and agent. which are compensation, reimbursement, and indemnification
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duties of principal to agent
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contractual duties
compensation indemnification and reimbursement tort and other duties |
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Termination of agency
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acts of the parties
lapse of time mutual agreement of the parties revocation of authority renunciation by the agent operation of law death incapacity change in circumstances irrevocable powers |
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what is a power given as security?
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is a power to affect the legal relations of its creator that is created in the form of a manifestation of actual authority and held for the benefit of the holder or a third person. this is a irrevocable power
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what is the rule in some states regarding an agency coupled with an interes?
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in which an agent has a security interest in the power conferred upon him by the creator. example where an agent's power to act is given as security for the loan. a power given as security may not be revoked.
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a power given as security is terminated when?
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when an event that discharges the obligation secured by it or that makes execution of the power illegal or impossible.
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