Texas Bar Agency

Front 1

Define Agency

Back 1

Legal relationship where agent is authorized to represent principal in business dealings with TP.

Front 2

Creation: What elements are required to create agency?

What K element is not required?

Back 2

1. Capacity
2. Consent
3. Writing (if required by SOF, Equal Dignities Rule)

Consideration is not required!

Front 3

Creation of Agency: What capacity is required for the principal? For the agent?

Back 3

Principal: Full K capacity.
Agent: Minimal mental capacity.

Front 4

Creation of Agency: Who must consent to an agency relationship?

Back 4

Both parties

Front 5

Agency: What are the four duties of an agent?

Back 5

1. Loyalty
3. Obedience
4. Rsbl care under the circumstances. (Compensation is a circumstance)

Front 6

Agency: What five remedies does the principal have?

Back 6

1. K actions
2. Tort actions
3. Actions for secret profits
4. Constructive trust.
5. Withholding of compensation (intentional torts/breaches of fid duty)

Front 7

Agency: What may the principal recover in an action against an agent?

What is not a consideration?

Back 7

Actual profits or profits held by the agent.

Loss by the principal

Front 8

Agency: If a subagent breaches, what liability does the agent have to the principal?

Back 8

Absolute liability.

Front 9

Agency: What duties does a subagent hold to a principal if he is authorized? Unauthorized?

Back 9

1. Same duties as agent
2. None, but owes duties to agent.

Front 10

Agency: What four duties does a principal owe to an agent?

Back 10

1. All K duties.
2. Rsbl compensation
3. Reimbursement for expenses
4. Cooperation

Front 11

Agency: What is actual express authority?

Back 11

Authority actually contained within four corners of agency agreement.

Front 12

Agency: What is actual implied authority?

Back 12

Authority agent rsbl believes she has as result of principal's actions.

Front 13

Agency: What eight items does actual implied authority include?

Back 13

1. Incidental to express authority.
2. Arising out of custom
3. Resulting from prior acquiescence.
4. To take emergency measures.
5. To delegate authority
6. To pay for and accept delivery of goods.
7. To give general warranties, collect payment, and deliver.
8. To manage investments.

Front 14

Agency: What are seven ways that actual authority may be terminated?

Back 14

1. Lapse of a specified or rsbl time.
2. Happening of specified event.
3. Change in circumstances.
4. Agent breach of fid duty.
5. Either party's unilateral termination.
6. Operation of law.
7. Death

Front 15

Agency: What is apparent authority?

Back 15

Authority arising from rsbl beliefs of third parties. Has to do with PRINCIPAL's actions, not those ofagent.

Front 16

Agency: What are the three types of apparent authority?

Back 16

1. When agent has no actual authority.
2. When agent exceeds actual authority.
3. Inherent auhtoirty

Front 17

Agency: What are the two situatiosn where an agent has apparent authority but has exceeded actual authority?

Back 17

1. Prior act - where principal previously allowed agent to exceed authority and TP is aware of thsi.

2. Position - when agent is in position that has customary responsibilities greater than actual authority.

Front 18

Agency: What are the two cases where an agent has actual authority? Where are these situations important?

Back 18

1. Respondiat superior.

2. Conduct similiar to that authorized.

Liability actions.

Front 19

Agency: What is ratification?

Back 19

When an agent purports to act on behalf of the principal, without authority, but the principal subsequently validates the act.

Front 20

Agency: What are the threeprerequisites for a principal for ratification? What is not required?

Back 20

1. Must know or have reason to know all material facts.
2. Must accept entire transaction.
3. Must have capacity.

Does not require consideration.

Front 21

Agency: Where is a principal liable to third party on a K?

Back 21

Where the agent, with valid authority, entered into a K on behalf of the principal.

Front 22

Agency: Is a agent liable to a third pary when the principal is disclosed? Exceptions?

Back 22

No.

Exceptions: Agent is liable on implied warranty that he is agent with authority for principal with K capacity.

Front 23

Agency: Is an agent liable to a third party if the principal is partially disclosed or undisclosed?

Back 23

Both principal and agent are liable.

Front 24

Agency: Who may hold a third party liable when the principal is disclosed?

Back 24

ONLY the principal.

Front 25

Agency: Who may hold a third party liable when the principal is partially disclosed or undisclosed?

Back 25

Either the agent or the principal.

Front 26

Agency: What is the first question to ask regarding liability of principal for agent's torts?

Back 26

Is the agent an employee or an independent contractor?

Front 27

Agency: If an agent is an employee, under what circumstances is the principal liable for the agent's torts?

Back 27

If the act is within the scope of employment.

Front 28

Agency: If an agent is an independent contractor, under what three circumstances is the principal liable for the agent's torts?

Back 28

1. If the activity involved was inherently dangerous.
2) the duty is nondelegable.
3. If the principal was negligent in selecting the agent.

Front 29

Agency: What are the main factor in considering whether an agent is an employee or an independent contractor?

Back 29

Right to control

Front 30

Agency: What are the five factors determining whether an act is within the scope of employment?

Back 30

1. Same general nature as job.
2. Frolic and detour.
3. Motivation to serve employer.
4. Intentional torts (not normally)
5. Ratification.