barbri_outline_-_ny_(2005)_-_agency_&_partnership

barbri_outline_-_ny_(2005)_-_agency_&_partnership -...

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Agency / Partnership 1 A GENCY 3 Principle Agency Problems A. Liability of Principal to 3 rd Party for Torts of an Agent B. Liability of Principal to 3 rd Party for Contracts entered by an Agent C. Duties which Agent owe to Principals I. Tort Liability – Respondeat Superior or Vicarious Liability Principal will be vicariously liable for torts committed by agent if: (i) a principal-agent relationship exists , and (ii) the tort was committed by the agent within the scope of that relationship A. Principal-Agent Relationship – requires ABC 1. A ssent informal agreement between principal & agent 2. B enefit – agent’s conduct must be for principal’s benefit 3. C ontrol – principal must have the right to control the agent by having the power to supervise the manner of the agent’s performance a. Sub-agents – NO vicarious liability for sub-agent’s tort UNLESS there’s (i) assent, (ii) benefit & (iii) control of sub-agents b. Borrowed agents – NO vicarious liability for borrowed agent’s tort UNLESS there’s (i) assent, (ii) benefit & (iii) control of borrowed agent c. Contrast Agent with Independent Contractors : (i) Factors – whether right to supervise the manner of an independent contractor’s performance, (ii) Rule – NO vicarious liability for torts committed by an independent contractor UNLESS: (a) Ultra-hazardous Activities (b) Estoppel – if you “hold out” an independent contractor with the appearance of agency, you’ll be estopped from denying vicarious liability B. Scope of Principal-Agent Relationship (3 factors): 1. Conduct “of the kind” agent was hired to perform – was the conduct within the job description 2. Tort occur “on the job” a. Frolic – a new independent journey b. Detour – a mere departure from an assigned task – within scope of agency 3. Agent intend to benefit the principal – partial benefit is enough for scope C. Intentional Torts 1. Rule – intentional torts are outside the scope of agency UNLESS: 2. Exceptions a. Specifically authorized b. Natural from the nature of employment (e.g. bouncer) c. Motivated by a desire to serve the principal (e.g. employee apprehends shoplifter) II. Contract Liability Principal will be vicariously liable for contracts entered into by agent if: (i) a principal-agent relationship exists , and (ii) the principal authorized the agent to enter the contract (there are 4 types of authority) A. Types of Authority 1. Actual Express Authority – principal used words to express authority to agent a. Rule – can be (i) oral, or (ii) private EXCEPT – if the contract involves the conveyance of interest in land , must be in writing b. Revocation – express authority will be revoked by: (i) Unilateral act of either party; or (ii) Death or incapacity of principal EXCEPT, revocation can’t be revoked if there’s a durable power of attorney (i.e., a written expression of authority to enter into a contract) – needs conspicuous survivor language
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This note was uploaded on 09/22/2011 for the course LAW LAW taught by Professor Concordia during the Spring '11 term at Concordia AB.

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barbri_outline_-_ny_(2005)_-_agency_&_partnership -...

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