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15 Cards in this Set
- Front
- Back
Define agency
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A consensual fiduciary relationship in which one party, an agent, agrees to act on behalf of, and subject to the control of the other party, the principal
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Three elements present in creating an agency
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Appointment of the agent by the principal
Acceptance of appointment by agent Understanding that A is subject to P's control |
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describe mutual manifestation of assent in the creation of an agency
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a.) Offer: specific promise and specific demand
b.) Acceptance 1.) Must mirror terms of offer Offer and acceptance together creates mutual manifestation of assent |
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Describe valid consideration in the creation of an agency
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Defined: Value given or detriment suffered in exchange for a promise
Past performance does not equal consideration for a present promise. Promise to make gift is not enforceable - no consideration on the receiving side. |
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Describe invalid consideration in the creation of an agency
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No remedy for illegal acts - you cannot recover in court.
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Describe Capacity in the creation of an agency
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Minors, mentally incompetent people and extremely drunk people have a defense to a valid contract
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Four requirements to create an agency:
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1. Mutual Manifestation of assent
a. appointment by the principal b. Acceptance by the agent 2. Consideration a. a gratuitous agency is enforcable 3. Capacity a. needed for the principal, but not for the agent 4. Legality is required - you can't hire someone to do something that is illegal for you to do. |
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List some formalities of agency creation:
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1. The agency must follow the equal dignity rule. It must meet the same level of formality as that required for the authorized act
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Three ways to create an agency:
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1. Agreement - appointment, acceptance, understanding of control
2. Ratification - the principal's confirmation of an agent's unauthorized act after the fact. a. Express to ratify- specific language b. Implied - P accepts benefits of agent's contract without telling third party 3. Estoppel - A person who misleads a third party to rely on an agency relationship can not later deny that relationship. |
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Employee defined:
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A person hired by another whose physical conduct is subject to control by the hiring party
May or may not be agent for th purpose of contracting. |
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Independent contractor defined:
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Hired by another, not subject to detailed physical control
May or may not be subject to physical control |
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How do you tell the difference between an employee and an independent contractor?
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Primary issue is right of control
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List the five duties of agents:
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1. Performance: Duty to use reasonable care
2. Loyalty: Duty to put Principal's interest first. 3. Accounting: Duty to provide principal with records of the proper use of all money or property that came into the agent's control 4. Notification: duty to inform principal of all relevant information the agent receives 5. Obedience: Duty to fulfill lawful requests of the principal. |
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Four remedies of principal for breach of duty:
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1. Constructive trust: All property of the principal or improper profits of the agent, and the income obtained, are held as if in trust for the principal.
2. Contract avoidance: principal may cancel all contracts with the agent relevant to the agency. 3. Indemnification: The agent owes the principal the amount of any damages paid to a third party as a result of the agent's breach of duty. 4. Accounting: the right to sue for all money and property entrusted to the agent but not accounted for. |
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List the four duties of principal's to agents
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1. Compensation: duty to reasonably pay an agent for services rendered.
2. Reimbursement: must repay agent for funds spent while carrying out agency. 3. Cooperation: Must do what is necessary to help agent complete the agency. 4. Safe workplace: must notify someone of dangerous conditions. |