Sc Agency

Front 1

What factors are considered when determining whether someone is an independent contractor or an employee?

Back 1

Under Nelson, look to:

1. Right to control, whether exercised or not (employer has right to control details of employee's work);

2. Method of payment (hourly indicates employee, payment at completion of project indicates independent contractor);

3. Furnishing of equipment (if employer furnishes, more likely it's an employee);

4. Right to fire (ultimate power to control, absolute right to fire is inconsistent w/ independent contractor)

Front 2

What duties do agents owe principals?

Back 2

Agents are fiduciaries to principal. The owe duties of care, loyalty, and good faith and fair dealing.

Front 3

What duties do principals owe agents?

Back 3

1. disclose risks of agency

2. reimbursement of expenses

3. furnish opportunities for work

4. keep and render accounts

5. duty of good conduct

6. pay compensation if not voluntary

Front 4

What's an undisclosed principal? Who is bound by a contract made by an agent on behalf of an undisclosed principal?

Back 4

Undisclosed principal occurs where third party believes Agent is the boss.

Third party, Principal, and Agent are bound.

Front 5

What's a partially disclosed principal? Who is bound by a contract made by an agent on behalf of an partially disclosed principal?

Back 5

Partially disclosed principal occurs where third party doesn't know who the principal is and couldn't determine with reasonably diligent inquiry, but knows A is working for someone.

Third party, Principal, and Agent are bound.

Front 6

What's a disclosed principal? Who is bound by a contract made by an agent on behalf of a disclosed principal?

Back 6

A disclosed principal occurs when the third party knows who the Principal is and that Agent is acting on behalf of Principal.

The third party and the principal are bound, but NOT the agent.

Front 7

What types of authority might an agent have?

Back 7

Express actual authority: from agency agreement

Implied actual authority: A reasonably believes he has based off P's actions

Apparent authority: third party's reasonable belief based on P's conduct holding A out to third party's as having authority

Ratification: retroactive acceptance by P of acts by A that were outside authority

Front 8

When will a principal incur direct liability for the acts of an independent contractor?

Back 8

If: (i) inherently dangerous activities are involved; (ii) nondelegable duties have been delegated; or (iii) the principal knowingly selects an incompetent contractor.

NOTE: "apparent agency" estoppel exception.

Front 9

Can a hospital avoid liability by hiring doctors as independent contractors only?

Back 9

No, there's an "apparent agency" estoppel doctrine in SC that applies if:

(1) Person accepts performance of service by principal;

(2) in reasonable belief that services would be performed by principal;

(3) but the principal delegates the services to an independent contractor;

(4) physical harm results;

(5) principal liable as if services had been performed by him or his servants.

Front 10

How is an agency terminated?

Back 10

1. withdrawing consent by either party.

2. agreement by both.

3. expiration of time

4. accomplishment of objective.

5. destruction/loss of subject matter.

6. death or incapacity of principal.

Front 11

If someone is fired by P, but they continue to act on the behalf of P, is there any way a third party can bind P?

Back 11

Agency terminates once there's a lack of consent by one of them. However, agency by estoppel may apply. Applies if P engaged in some conduct that foreseeably led the third party to reasonably believe that they were dealing with an Agent, and their reliance caused them harm.

Front 12

How do you determine whether an employee's act was within the scope of employment?

Back 12

There are three factors to consider: (i) whether the conduct was of the same general nature as, or incident to, that which the employee was employed to perform; (ii) whether the conduct was substantially removed from the authorized time and space limits of employment; and (iii) whether the conduct was actuated, at least in part, by a purpose to serve the employer.

Front 13

What is a general agent?

Back 13

A general agent is one who is authorized to engage in a series of transactions involving a continuity of service (e.g., a manager of a restaurant who has authority to hire employees, purchase equipment, etc.).