agency Flashcards

Terms Definitions
authority
agency usually arises consensually with the principal and agent agreeing that the agent shall act on the principal's behalf. In such a case, the agent has the right to bind the principal to the extent that the principal and agent have agreed. Such a right is known as authority and the principal will be bound even if the third party with whom the agent deals does not know the agent has authority or that the agent is acting as an agent.
delegation
mechanical and ministerial acts, agent cannot perform and custom or necessity.
marriage
marriage is a personal relation arising out of a civil contract between a man and a woman to which the consent of the parties capable of making that contract is necessary.
partnership negligence
the partnership generally cannot recover against third parties for negligent injuries to one of the partners.
employer
generally, any person having the capacity to contract may employ an agent or employee. Thus minors, and incompetents, lacking contractual capacity cannot appoint employees and cannot be held vicariously liable.
Subagents 
agent has absolute liability to principal for breaches of subagentsubagent owes principal same duties as the agentif unauthorized, no duties to principal, only to agent
restatement
the liability of agent and principal is not discharged until hit amount sueing for. Can collect from both until satisfy.
after ratification
a change of circumstance occuring after ratification by the principal will not be sufficient to avoid ratification.
exception- traveling salespeople
likewise, a traveling salesperson compelled by work for long perods of time is within the scope the entire time he is away, even while not actually at work, as when he is returning home.
example
husband uses community proerty to make a mortgage payment on land in his name, all prior payments having been made with husbands seperate funds. The community buys in to title to the property despite no express writing.
ostensible agency
an ostensible agency (also called agency by estoppel) arises if the principal 1.intentionally or carelessly causes a third person to believe that the agent has authority or 2. upon notice, fails to take reasonable steps to notify the third person that the agent does not have authority, and 3. the third person makes a detrimental change in position (expends money or labor or incurs a loss) based on reliance on the agent's purported authority.
consciousnability
was not fully advised of financial status and obligations of the other party, did not waive such lack of disclosure in writing, could not reasonably have obtained the info. on her own.
respondiat superior has torts and agency has
contractual liability
mechanical acts
written authority usually is not required if the agent acts mechanically, example if the agent does not have discretionary authority to enter into a contract, but ismerely authorized tosign the principal's name to a contract already made. Another example, pam negotiates a contract with x, but leaves town before the agreement has been drawn up. If pam authorizes amber to sign pam's name to the agreement, the authority is valid even though oral.
duties of principal
express and implied contractual duties, cooperation, compensation, indemnification, aviodance of negligence, and to deal fairly and in good faith.
estoppel
estoppel is a remedy applied to prevent a principal who has misled another from profiting from his own misconduct. estoppel may be invoked whenever the principal has intentionally or carelessly caused or allowed a third party to believe that his agent has authority to do that which in fact the agent is not authorized to do so, or fails to take reasonable steps to notify the third party when he has notice of the third party's belief, and the third party detrimentally relies so that it would be unjust to allow the principal to deny the agent's authority.
unenforceable agreements
the agreement and the writings executed was not done under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
IMPROPER DISPOSITION OF GOODSPrincipal will be held liable for disposition of her goods by an agent __________ them:(1) If agent was given some _______ of ownership, or (2) If goods disposed of were sold by an agent wh
IMPROPER DISPOSITION OF GOODSPrincipal will be held liable for disposition of her goods by an agent POSSESSING them:(1) If agent was given some INDICIA of ownership, or (2) If goods disposed of were sold by an agent who is a DEALER in particular goods.
DISCLOSED PRINCIPAL_________ AND _________ known to the third party.
DISCLOSED PRINCIPALEXISTENCE AND IDENTITY known to the third party.
Farm Security Administration
reformed farms, gave people houses, jobs, and chicken coops, relief orgainization, does not exist today, costed a lot of money
post termination
after termination of his employment he can compete with principal and work for competitor, unless he has agreed otherwise. 
joint tenancy
joint tenancy is half the seperate property of each spouse, and the creditor of one spouse alone can reach only half whereas all the community property could be reached. Creditors do have standing to rebut the joint tenancy presumption and have succeeded by showing that the couple did not know the difference between joint tenancy and community property.
actual authority
most courts use the term actual authority to denote authority.
distinguish-business goodwill
is deemed community property to the extent that it is generated by labor during marriage. Therefore it should be valued as community property and awarded to the professional spouse who developed it with an offsetting award to the other spouse.
mreit raises
a future raise could be deemed community because it was earned when married.
exam tip
when analyzing the property rights of participants in a putative marriage, you should 1st determine whether either participant is still legally married to another person. Property acquired during a putative marriage may be divided differently if one spouse is still married.
quantum meruit
a non-marital partner may recover in quantum meruit for the reasonable value of household services rendered (less the reasonable value of support recieved) if it can be shown that he or she rendered services with the expectation of a monetary reward.
distinguish-joint venture
although members of a joint venture share profits and losses, it is ordinarily formed for a single transaction, whereas a partnership usually engages in a continuing business for an indefinite or fixed period of time. Although it is sometimes difficult to distinguish a joint venture from a partnership, the provisions of the RUPA are often applied to a joint venture.
shop right doctrine
nonetheless, if the patent or invention was perfected on principal's time and with his money and materials, and is related to principal's business, the principal is deemed tohave shop right to the patent and an irrevocable right to use the idea or invention which does not terminate when the employment ends. 
profits and losses
partnership profits and losses are shared according to the partnership agreement. Absent an agreement, partners share profits equally and losses according to profits.
note that for purposes of section 6402.5 quasi community property is treated as:
community property.
inentional torts by employee
liability under respondeat superior extends intentional acts by the employee only if the acts occur with in the scope of employment.
reimbursement for improvements
imrovements made with seperate funds must be reimbursed without interest according to 2640.
estate of levine
had home in joint tenancy-husband dies-his will says the house was in community property and his half should go to his kids- the rule is you cant have any hidden intentions and the property remains in joint tenancy.
TRUE/FALSE?Consideration is required to establish an agency relationship.
FALSE!NO consideration is necessary to establish an agency relationship!
UNITED STATES PHARMACOPEA (USP)
OFFICIAL PUBLIC STANDARDS SETTING AUTHORITY OF ALL PRESCRIPTION AND OTC MEDICINES AND OTHER HEALTH CARE PRODUCTS MANUFACTURED OR SOLD IN THE US
Works Progress Administration
gave jobs to people in construction, relief to people by supplying them with work, does not exist today
gilmore motion
retirement
time rule for apportionment 
# of years employed while married
(dom-dos)
---------------------------------  = cp
# of years employed
there is no presumption of gift in the:
improvement scenario
exception- statutory pension plan
under section 2610- which provides that only the legal spouse of the participant and not an ex-spouse has a right to post death benefits. In such a case, the divorce court cannot award the participant's ex-spouse a share of post death benefits.
exclusive remedy
that a court cannot order educated h to pay any reimbursement to w's estate when she dies days after he recieves his medical degree following extensive community expenditures for his medical education. Since the statute bars reimbursement to the community when the marriage ends by death, common law reimbursement for seperate property contributions to college tuition and the like probably will not be granted in the death context.
community realty
forty days after the death of one spouse, the surviving spouse (or her guardian, conservator, or personal representative) obtains full power to sell, lease, mortgage, or otherwise deal with and dispose of community and quasi community realty subject to administration unless notice of a cliam is filed by a devisee under the decedent's will. These managment rights may be exercised by the survivor without regard to the form of title to the community realty. (even if it was held in decedent's name). The effect of the devisee's filing notice of a claim of interest is that the surviving spouse does not get the management power provided for by the 40 day statute.
amount of recovery
if the nontransferor spouse sues the transferee before dissolution of the community, she can recover the full amount of the property.  
custom or necessity
the agent has authority to appoint subagents whenever it is customary or necessary to do so.
implied from principal's manifestations
actual authority may be impliedly conferred by the manifestations of the principal through words or conduct indicating his intention to confer it, or by otherwise causing the agent to believe that she possesses it.
volunteers
the mere fact that one party has not requested the other to render services does not prevent an employer employee relationship, from arising if the employer knows that services are being rendered and accepts the benefits.
downer v. bramet
time,energy and skill is a community property-she gets 1/2 ranch.
termination of apparent authority
continues despite the termination of actial authority until it is no longer reasonable for the third party with whom the agent deals to believe that the agent continues to act with actual authority.
straight v. hale
when control is split is meaningless- reliability must be on the employer that can best bear the risk. But regardless both special employer and general were found liable due to control.
chevron v. sutton
chevron found to have an employee employer relationship. Duck test- sub agent must have authority, necessity, and emergency to which they had that here. Chevron had a sign out front- apparent authority- it created the appearance that chevron was employer therefore must by vicariously liable.
AGENCY
 
INDEPENDANT CONTRACTOR
 
DYNAMITE ON RAILROAD
 
WHAT IS LIABILITY OF PRINCIPAL
AS A GENERAL RULE THERE IS NO VICARIOUS LIABILITY FOR AN INDEPENDANT CONTRACTORS TORTS EXCEPT FOR TWO SITUATIONS
 
1.  ULTRA HAZARDOUS ACTIVITY
2.  ESTOPPEL
 
iN THIS CASE X WAS USING EXPOSIVE, IN A ULTRA HAZARDOUS ACTIVITY, AN TEH PRINCIPAL WILL BE VICARIOUSLY LIABLE.  iN ADDITION, IF THE INDEPENDANT CONTRACTOR HAD HELD HIMSELF OUT TO BE A AGENT, THE PRINCIPAL WOULD BE 'STOPPED' FROM DENYING LIABILITY ON THIS GROUND
Does apparent authority exist?Is there a _______ belief by a _______ PARTY that an _______ has authority to act on behalf of the ________?EXAMPLE: The principal "_______ _____" another as possessing certain authority, th
Does apparent authority exist?Is there a REASONABLE belief by a THIRD PARTY that an AGENT has authority to act on behalf of the PRINCIPAL?EXAMPLE: The principal "HOLDS OUT" another as possessing certain authority, thereby INDUCING others to reasonably BELIEVE that authority exists.
This agency works to manage and protect forest land while promoting its best use:
U.S. Forest Service
Fair Labor Standards Act
gave minimum wages to workers, created child labor laws, businesses lost money, does not exist today
declarations of seperate ownership
if a will states directly or indirectly that an asset that is actually community is the decedent's seperate property and disposes of it, the surviving spouse is required to make an election.
acquiring material benefits
cannot, it is all property of the principal, because he is working on his behlaf and for his benefit not the other way around unless the principal gives consent.
effect of future obligations
since the rights of a contract creditor do not depend on whether the debt is community or seperate, seperation of the spouses has no effect on post seperation creditors other than to convert post-seperation earnings into seperate property. Post seperation torts are likely to be seperate torts, so that the tort creditor canbe compelled tolevy first on the tortfeasor's seperate property. However, a seperation that makes subsequent earnings seperate under calif. family code section 771 does not alter the nature of community property already acquired; and a seperated spouse could still commit a community tort-example:while maintaining pre-seperation community real estate. Tort liability incurred in operating a community business after seperation should be considered at least partly community for pecking order purposes, since the reverse pereira van camp formulas make part of the earnings of the business after seperation community property.   
possible exceptions
Note however, that if a portion of the tort recovery is for lost earnings and the period of disability extends into the time when the victim was married and cohabitating, some part of this recovery for lost earnings is lofically community (since it is to replace what would have been community earnings). The same goes for medical bills.
uncommingling where no withdrawals
uncommingling is often easy when no withdrawal has been made from the commingled mass. Where each known deposit is still present and can now be withdrawn, each can be given its intitial classification (seperate or community).
test for reliance
the test for reliance is what a reasonable person under circumstances would have belived- a test that is sometimes difficult to apply.
books and records;information
each partner is entitled to access to the partnership books and records and may inspect and copy any of them. Such books and records must be kept at the partnership's chief executive office. Partner's must be given without demand, information necessary for the exercise of the partners' rights and duties. Under the UPA, partners are not obliged to provide info. regarding partnership business unless a demand is made for such info. A deceased partner's personal representative has the same rights as the deceased partner would have had.
duties of agent/rights of principal
an uncompensated agent generally does not have a duty to perform, but once he preforms, he may be subject to tort liability if he improperly performs. Additionally, every agent is a fiduciary, whether or not he is compensated. As such he has a duty to 1. notify the principal of all matters that come to his knowledge affecting the subject of the agency, and 2. be loyal to the principal, which includes avoiding conflicts of interest. If an agent breaches his duties, the principal may among other things seek damages, recover the agent's ill gotten profits, and withold the agent's compensation.
principal's capacity
a principal can ratify an act if the principal existed at the time of the act and had capacity at the time of ratification. Thus a principal who was not in existence at the time of the agent's act cannot ratify.
What agency helps protect the nation's birds, mammals, fish, and other wildlife?
U.S. Fish and Wildlife Service
DRUG ENFORCEMENT AGENCY (DEA)
OVERSEEN BY THE DEPARTMENT OF JUSTICE AND ENFORCES COMPLIANCE WITH THE CONTROLLED SUBSTANCES ACT
general fiduciary principle
an agent has a fiduciary duty to act loyally for the principal's benefit in all matters connected with the agency relationship.
marriage of mctiernan and dubrow
definition of goodwill- property of an intangible nature, expectation of continued or futured patronage.
Unique skill- lawyers are a dime a dozen. An inventor or artist is unique for example. We can contest goodwill if the service is unique.
types of offsets permitted
a claimant spouse, say w, may press claims at divorce for half of the community's right to reimbursement for improvements made to h's seperate personal property with community funds, for gifts of community property not consented to in writing by w, or for h's failure to account formissing property under his exclusive management. The divorce court can also award damages or make offsets for violation by a spouse of the good faith standard of calif. family code sections 721 and 1100.
lien rights of subagents
The subagent has a lien against the agent's property inher possession for services and expenses and against the principal's property in her possession to the extent of the agent's rights in such property.
distribution from partnership
a partner is entitled to 1. the return of his capital and contribution upon dissolution 2. reimbursement for reasonable expenses and personal liabilities incurred while conducting partnership business and for advances beyond his agreed upon contribution and 3. remuneration for winding up the business. Generally, a partner has no right to remuneration for work performed on behalf of the partnership absent an agreement by the partners.
seperate property liable for necessaries
contrary to the general rule, one spouse's seperate property is liable for a debt incurred for items called necessaries for the other spouse while they are cohabitating. If the spouses are living apart when the debt is incurred, seperate liability of the nonobligor spouse is limited to credit purchases of common necessaries defined in a statutory note as items necessary to susatin life.
tort ocurring before marriage
If the recipient souse can show she owned the tort cause of action before the marriage, the presumption is dispelled by the tracing process, and the damages are also seperate property of the victim.
purchase by installment contract
husband buys land and agrees to pay 800 a month. 5 years passes, then h marries. w and h pay for 20 years. When title to blackacre passes, a percentage of the land will be owned as h's seperate property and a percentage as community property.
agent's liability on contract- undisclosed or unidentified principal
distinct from an agent's liability for breach of warranty is the agent's liability on the contract itself. An agent who without authority enters into a contract with a third party is liable to the third party on the contract if the principal is undisclosed or unidentified. If the principal is undisclosed the agent is the only party on the contract (she is the promiser) and therefore she is liable on the contract.
no ratification- no contract
it follows that if the principal never ratifies there is no contract between the third party, and the agent can be liable.
WHEN CAN EXPRESS AUTHORITY NOT BE REVOKED
1.  POWER OF ATTORNEY (WRITTEN EXPRESSION OF AUTHORITY)
 
2. DURABLE  LANGUAGE - SURVIVES DEATH OR INCAPACITY
 
3. OR PRINCIPAL HAD  DURABLE  POWER OF ATTORNEY
________ AUTHORITY arises from the reasonable beliefs of THIRD PARTIES.
APPARENT AUTHORITY arises from the reasonable beliefs of THIRD PARTIES.
How is APPARENT AUTHORITY created?
APPARENT AUTHORITY = Created by the HOLDING OUT of the agent by the principal.
DUTIES AGENT OWES TO PRINCIPAL
1) Duty to exercise reasonable care
2) Duty to obey reasonable instructions
3) Duty of loyalty (no self-dealing, no usurping, no secret profits)
in this situation principal was disclosed but was for a unicorporated association, therefore
the principal here has no capacity because there is no legal existence and the agent is bound by the contract to pay.
agency by agreement- an agency by agreement must be based on some indication by the principal to the agent that the principal consents to have the agent act on her behalf. A similar manifestation of consent by the agent to act for the ---
principal must be indicated as well.
once the agent fullfills his purpose:
is terminated, but note agents must have notice that the purpose was fullfilled.
principal's liability-when third party has performed
as noted, a principal is generally not liable on a contract entered into by an agent acting without authority or in excess of authority. However, if the agent exceeds her authority, but the third party renders full or part performance under the contract, the third party may be entitled to sue the principal in quasi contract for the value of the benefits conferred on the principal, even though the third party cannot enforce the contract itself against the principal absent the principal's reatification.
presumption wife is not the only transferee
if the pre-1975 written instrument names wife and one or more other transferees as owners, section 803 presumes that wifes interest in the contenacy is her seperate property.
family code 770
seperate property of married person
seperate property of a married person inlcudes 1. all property owned by the person before marriage 2. all property acquired by the person after marriage by gift, bequest, device or descent. 3. the rents, issues, and profits of the property described in this section.
4. a married person may with out the consent of the person's spouse convey the persons seperate property.
recovery for loss of consortium
each spouse has a cause of action against a tort feasor who injures the other spouse so that the couple is unable to engage in marital sex. Recovery ought to be community property, since the right invaded depends on marriage, and the damages awarded cannot be traced to any seperate property right.
factors to consider in determining who has the right to control
1.the extent of control either employer exercises over the employee's work 2. does the employee provide a unique service 3. who has primarily control over the employee's work 4. is there a stated duration for the employment 5. whether paid salary or a certain sum for a particular task 6. whether the equipment is supplied by the general or special employer.
transactions requiring consent of both spouses
equal management does not apply to sales or encumbrances of community furniture, household furnishings, clothing of the nonacting spouse, clothing of the children, or fittings of the family dwelling. All such transactions require written consent of the nonseller spouse.
result if parties agree to simply share ownership
under marvin decision- a general sharing agreement can be implied from the conduct of male and female and would be classified as tenancy in common.
WHAT IS THE ABC RULE
A- ASSENT - MUST BE INFORMAL AGREEMENT BETWEEN PRINCIPLE WITH CAPACITY AND THE AGENT
 
B- BENEFIT - THE AGENTS CONDUCT MUST BE FOR THE PRINCIPALS BENEFIT
 
C- THE PRINCIPAL MUST HAVE THE RIGHT TO CONTROL THE AGENT BY HAVING POWER TO SUPERVISE TEH MANNER OF PERFORMANCE 
Agent breach of duty: theories of liability
- breach of contract
- tort liability

Remedies:
- return funds
- withhold compensation
How to determine whether acts fall within scope of Agent's authority under Principal?
-Was conduct "of the kind" agent was hired to perform?
-Did tort occur "on the job" (Frolic vs Detour)
-Did the agent intend to benefit the principal
if your exam question involves the breach of a duty by an agent or principal, you should consider the following:
duties of agent/rights of principal: a compensated agent owes the principal the duty to perform with reasonable care. If the agent does not so perform, he may be held liable for breach of duty in both contrac and tort negligence.  
agent cannot perform act herself
when the act is such that the agent cannot lawfully perform it herself, the agent has authority to delegate the act to a subagent who can perform it.
An agent has _________ LIABILITY to the principal for breaches by a subagent.If a subagent is UNAUTHORIZED, he owes ____ duties to the _________, but DOES owe duties to the AGENT.
An agent has ABSOLUTE LIABILITY to the principal for breaches by a subagent.If a subagent is UNAUTHORIZED, he owes NO duties to the PRINCIPAL, but DOES owe duties to the AGENT.
TRIPS W/ TWO PURPOSESIf the employee makes a trip w/ two purposes, it will be WITHIN the scope of employment if any SUBSTANTIAL ________ of the employer is being served.
TRIPS W/ TWO PURPOSESIf the employee makes a trip w/ two purposes, it will be WITHIN the scope of employment if any SUBSTANTIAL PURPOSE of the employer is being served.
LIABILITY OF PRINCIPAL FOR CONTRACTS ENTERED BY AGENTS: When is the express authority irrevocable?
When the principal gave a power of attorney to the agent to enter into a transaction(s).

Look for conspicuous survival language.
an employer is generally notliable for the torts of a physician
because too skilled of a profession to be able to control duties.
no right to indemnify for unauthorized or illegal acts
The agent is generally not entitled to indemnify for losses resulting from the acts that are unauthorized and do not benefit the principal. Additionally there is no right to indemnification if the agent acted illegally or negligently.
LIABILITY OF PRINCIPAL FOR TORTS OF AN AGENT: What are the requirements of the principal-agent relationship?
Remember A B C

1) Assent (between agent & principal)
2) Benefit (principal's benefit)
3) Control (by principal)
effect of other spouse's signature on loan document
suppose h seeks a loan and the lender demands w's signature as well on the prmissory note. Since h alone could obligate the community, it may well be that the lender was looking primarily to w's seperate property (which her additional signature obligates) for repayment, and if so, the acquisition would be her seperate property.
If your an agent and an agent with knowledge, a agent cannot use the knowledge he has against the principal and:
agent cannot warn their principal that they are going to take advantage of them.
AGENCY

GIVE A MODEL ANSWER FOR THE TORT OF AN AGENT THAT WOULD/ WOULD NOT MAKE THE PRINCIPAL LIABLE
A PRINCIPAL WILL NOT BE LIABLE FOR THE TORTS COMMITTED BY ITS AGENT IN THE SCOPE  OF AGENCY
 
iN THIS CASE THIS AGENT WAS ON A DETOUR / FROLIC BECAUSE (FACTS)....
THEREFORE THE PRINCIPAL WILL / WILL NOT BE VICARIOUS LIABLE FOR THIS TORT
Duty to deal fairly and in good faith
A principal has the duty to deal with the agent fairly and in good faith, including a duty to provide the agent with the information about risks of physical harm or loss that the principal knows, or has reason to know, or should know are present in the agent's work but which are unknown to the agent.
what can a principal sue his agent for if that agent does something against the principal's instruction?
he can sue agent for breach of duty and contract.
reimbursement without interest is usually a less desirable remedy than a buy in to title, and pro-rata sharing of ownership is usually:
applied
limitation
when the pro-wife presumption arises but evidence of community ownership is received, the special presumption converts to a rule placing the burden of proof on the pary seeking a community characterization.
life insurance
apportionment is through pro-rata, where some premiums have been paid with seperate funds and some with community funds.
Ratification?
Principal has knowledge of all material facts regarding the K AND
Principal accepted its benefits
Exception - ratification cannot alter the terms of the K (else authority is void)
agent's incapacity
an agent's authority is not necessarily terminated if agent becomes mentally incapacitated. Only if she cannot do the particular act authorized.
exceptions
if the special employer directs the employee to perform a specific act, he will be liable as well.
competition
throughout the duration of an agency relationship, an agent has a duty to refrain from competing with the principal and from taking action on behalf of or otherwise assisting the principal's competitors. During that time, an agent may take action, not otherwise wrongful, to prepare for competition following termination of the agency relationship.
motivation
again, the factual issue is whether the intentional act is related to carrying forth the employer's business. Was there personal reasons or was there employer's business.
assets
a partner who purchases or holds partnership assets in his own name does so as trustee for the partnership.
tort liability
under this warranty theory of liability, the agent is liable even though she belived in good faith that she was authorized. Moreover, if the agent intentionally misrepresents that she has the requisite authority, she may also be held liable in tort for deceit.
marriage of noghrey
pre-marital agreement cannot promote divorce-against public policy.
RESPONDEAT SUPERIORPrincipal liable for _______ of his agent committed w/i the ________ OF EMPLOYMENT.HOWEVER, principle NOT liable for torts of an __________ ___________.
RESPONDEAT SUPERIORPrincipal liable for TORTS of his agent committed w/i the SCOPE OF EMPLOYMENT.HOWEVER, principal NOT liable for torts of an INDEPENDENT CONTRACTOR.
PARTIALLY DISCLOSED PRINCIPALOne whose existence is _______ but whose identity is ___________.
PARTIALLY DISCLOSED PRINCIPALOne whose existence is KNOWN but whose identity is UNKNOWN.NOTE: BOTH principal and agent are liable.
Agricultural Adjustment Administration
encouraged farmers to cut down production of crops, farmers lost money, doesn't exist today, recovers farming business
unforseen events
war, bankruptcy, changes of law and ambezzlement or disloyalty of the agent.
notification
involves an act intended to bring to the principal knowledge that affects her legal rights.
unidentified principal
a principal is unidentified if the third party with whom the agent is transacting business knows that the agent is acting for a principal but does not know the principal's identity.
death of spouse
exam questions involving a death should alert you to consider the position of third parties.
ratification
a principal is liable for the tortious act of her agent if 1. at the time of the act, the agent purported to act on the principal's behalf 2. the principal accepts the benefits of the act knowing all relevant factors.
waiver ineffective
because this liability is imposed for the protection of 3rd perosns, the employer cannot contract with her employee to insulate herslef from liability.
Capacity to create agency
principal must have contractual capacityagent needs only minimal capacity 
Securities and Exchange Commision
monitors stocks and industry, relieves people who buy stocks so they don't get rigged, still exists today
actions between partners
under the RUPA- the rupa specifically allows actions against other partners for either legal or equitable relief to enforce 1. a right under the partnership agreement 2. a right relating to sharing profits, participation in management, indemnification, etc. 3. rights relating to dissociation or dissolution and winding up of the business or 5. any other right of the partner.
telephone answerer
1. the business has invited the public to use the telephone to transact business with it 2. the business has permitted an employee to answer the phone 3. such person has purported to act for the business with authority 4. the person caling the place of business had a right to assume that the person permitted to answer the phone had authority to act.
relaince required
it is essential that the third party rely on the warranty, example an agent is not liable if the third party knows that the agent was mistaken as to her authority.
fiduciary duties
in addition to the basic duty to perform the contract and render services with reasonable care, he owes the principal a fiduciary duty as well of faithful service.  
trade secrets
a former agent cannot use or disclose trade secrets or other confidential information obtained during his employment.
competing with principal
agent cannot unless agency has ended and action is not wrongful.
seperate torts
torts in which liability is not based on an act or omission involving an activity benefiting the community. Example:h is sued for beating up a stranger he encountered on the street who cursed h. Community property is secondarily liable and seperate property is primarily liable.
examples of implied authority
-purchasing agent
make warranties, pay purchase price, accept goods and conclude purchase.
the term widow or surviving spouse in death includes:
putative spouses
def. of community property
except as provided in statutes, defining seperate property, all property real and personal, wherever situated, acquired by a married person during marriage while domiciled in this state is community property.
apparent authority
this is the power that the principal manifests to third parties that the agent has. A principal will be bound by an agent's acts if a third party reasonable believes, based on the principal's manifestations to the third party, that the agent had authority.
indepedent duty
a principal is liable for the torious act of her agent if the prinicpal was negligent in hiring, training, or supervising the agent, the principal was charged with care of the person injured by the agent's act, or the principal fails to exercise due care in handling a fact or condition of which the agent has knowledge and which knowledge is imputed to the principal.
use of unauthorized instrumentalities
within scope unless instrumentality is substantially different from that authorized.
advantages of non-contractual remedies
in seeking quantum meruit, the non-marital partner claims as credito rather than as a co owner and can reach seperate property. Could also might be able to get constructive trusts.
intentional tort
within scope if act is related to carrying on employe's business.
AGENCY

MODEL ANSWER FOR RATIFICATION
 
ANTIQUE BOXES (CAL / BOSTON)
LOVE ANTIQUES CAN TAKE ALL / TEN
PRINCIPAL IS LIABLE ON AUTHORISED CONTRACTS.  IN THIS CASE THERE WAS NO ACTUAL EXPRESS OR IMPLIED AUTHORITY TO BUY THE ANTIQUES, NOR IS THERE EVIDENCE OF APPARENT AUTHORITY TO BUY THE ANTIQUES.  NONETHELESS PRINCIPAL ARGUABLY RATIFIES CONTRACT THROUGH KNOWLEDGE AND ACCEPTANCE OF ITS BENEFITS IF ALL - BUT IF ONLY TEN, THEN RATIFICATION NOT POSSIBLE IN NY.
PASSENGERSAn employee's invitation to passengers is ________ the scope of employment UNLESS _______ authorized by the employer.
PASSENGERSAn employee's invitation to passengers is OUTSIDE the scope of employment UNLESS EXPRESSLY authorized by the employer.
TRUE/FALSE:Intentional torts are NOT normally w/i the scope of employment.
TRUE!Intentional torts are NOT normally w/i the scope of employment.
The federal agency that manages federal grasslands, prairie, desert, forest, and other open spaces is the:
Bureau of Land Management
impact of time of gift
suppose husband's aunt intending that husband and wife co-own the diamonds as community property-delivers the diamonds to wife before the wedding that establishes the community. Ownership must be a tenancy in common because of the acquisition before marriage unless husband's aunt's delivery was conditional upon, and title would not pass until the marriage.
possession plus long marriage
finally, another case has held that the general presumption can apply (despite failure to show acquisition during marriage) if the evidence shows possession of the property by either spouse at the end of a long marriage.
earnings of w-2
the earnings of w-2 are her seperate property-quasi marital statute does not cover two wife situations where husband is cohabitating with both. If he were to recieve half, w-1 has a logical claim to 1/2 of this half, since acquisition occurred during lawful marriage while spouses cohabitated and was not by gift, will or inheritance.
community tort's
if liability is based on an act or omission which occurred while the married person was performing an activity for the benefit of the community, liability shall be satisfied first from the community property and then from the tortfeasor's seperate property.
spouse's duty to account
under the earlier rule of exclusive male managment, h had a duty to account for community assets known to exist shortly before h and w seperated butmissing at the time of divorce. If h could not show that the assets were expended for community purposes, he was required to reimburse the community. This meant that w could collect the value of half of the missing assets from h's seperate property and h's half of the community property on hand.  
employee's personal acts
an employer may be liable for injuries caused by an employee's personal acts (smoking) if the act is incidental to the employee's performance of assigned work. Moreover, even a personal act performed off the employer's premises and while the employee is not engaged in work will be considered to be within the scope of employment if the employer exercises control over the employers perosnal acts.
implied because of emergency
in an unforseen emergency, where the agent cannot contact the principal to obtain additional authority, the agent is impliedly deemed to have the authority to do all acts reasonably necessary to protect or preserve the property or rights of the principalI including the right to delegate authority and appoint subagents).  
death or incapacity
the death or incapacity of the third party will also terminate the principal's power to ratify.
what is vested?
when an employer matches the money you put into your retirement if you work for a number of years.
agent breach of duty: possible remedies
- return funds
- withhold compensation
CENTER FOR MEDICARE AND MEDICAID SERVICES (CMS)
OVERSEES MEDICARE AND MEDICAID, ESTABLISHES CONDITIONS FOR A FACILITY TO BE REIMBURSED FOR SERVICES RENDERED
dual management for alienation
by statute, one spouse alone lacks the power to convey, encumber, or lease for more than one year community realty, in such transactions, both spouses must join in executing any instrument of conveyance. Note that a spouse will not be permitted to avoid this rule by unilaterally conveying or encumbering a half interest in community property on the theory that it is that spouse's alone.
relations between partners
-fiduciary duty
a partner owes to the partnership and the other partners the fiduciary duties in good faith and with fair dealing. 
agreements by minors
a minor may make a valid pre marital agreement or other marital property agreement if the minor is emnacipated or is otherwise capable of contracting marriage.
method of election
by her actions to accept the will, or by filing a formal document with the probate court either electing to take under the will or renouncing its gifts and asserting ownership of property the will attempts to dispose of.
living apart doctrine usually determines result
in most bigamous marriages, the twice married person, say husband, will have seperated from w-1, before marrying w-2. Under the living seperate and apart doctrine w-1 has no claims to husbands post-seperation acquisitions by labor, although on his death she can claim as heir part of his seperate property. And w-2 can have no claims on pre-second marriage acqusitions.
diminishing community fraction of benefits
if the participant spouse continues on the job after divorse, this subsequent labor is atken into account in determining the seperate and fromer community interests. The formula for calculating the interest of the non-participant spouse (say w) on a time apportionment would be:
wife recieves half of all months h was on job all together(x) divided by months h was on job while married to w (y).  w recieves 1/2 x          x
                                     ----------
                                     x + y
exception to pro-community presumption
802, provides where a person dies more than 4 years after divorce, the presumption that property acquired during marriage is community property (of the former marriage) does not apply to the assets in the person's estate.
duty of loyalty
an agent must be loyal on all matters connected with the agency.
TYPES OF APPARENT AUTHORITY- WHEN AGENT HAS ___ ACTUAL AUTHORITY- WHEN AGENT ________ ACTUAL AUTHORITY- INHERENT AUTHORITY (INHERENT AGENCY POWER)
TYPES OF APPARENT AUTHORITY- WHEN AGENT HAS NO ACTUAL AUTHORITY- WHEN AGENT EXCEEDS ACTUAL AUTHORITY- INHERENT AUTHORITY (INHERENT AGENCY POWER)
LIABILITIES OF PARTIESA THIRD PARTY'S rights against the principal and agent differ depending on whether the principal's ___________ has been _________ to the third party.
LIABILITIES OF PARTIESA THIRD PARTY'S rights against the principal and agent differ depending on whether the principal's EXISTENCE has been DISCLOSED to the third party.
What agency operates NC state parks through the Department fo Environmental, HEalth and Natural Resources?
Division of Parks and Recreation
where the agent has some actual authority
-prior acts
if the principal has previously allowed the agent to act beyond her authority and the principal knows that a third party is aware of this fact, the principal is bound by the agent's unauthorized act.
specific examples of implied authority
-agency to sell
an agent who is given authority to sell can make warranties, receive payments, deliver goods, negotiate, conclude sale.
where recovery is recieved after dissolution by death
the death of the nonvictim spouse converts a cause of action for the surviving spouse's personal injuries from the community property (if tort ocurred during marriage and cohabitation) to the survivor's seperate property. And the decedent's estate has a right to reimbursement for any community funds spent for medical care or lost earnings.
lawful wife may benefit financially
the half of the female's earnings that would go to husband under any sharing contract between husband and female will be community property of husband and wife. If he has not sperated from her during the living arrangment of wife and female. If female earns more than husband, wife might thereby benefit monetarily from the marvin sharing contract.
tort liability of one spouse to other
calif. family code section 782 provides that in the case of injury to a married person, where one spouse isliable to the other in tort, community funds may not be used to pay the liability until the tortfeasor's seperate property is exhausted. The same pecking order rule also applies to any sums that the tortfeasor spouse may owe by way of contribution to a joint tortfeasor who has paid the victim spouse more than his share of liability.
the courts look for a sunjective belief and a?
objectively reasonable belief for a marriage.
effect of seperation or divorce
if the wrongful death of a child occurs after seperation of the spouses, damages must be proved by each parent and recovery of each is seperate property. If the death occurs during marriage but recovery is obtained after divorce the recovery should likewise be charcterized as seperate property.
term life insurance cases
if for 20 years is paid with community funds and the last year premium was paid with seperate funds, is considered sepertate if husband becomes disbaled.  
use of employer's instrumentalities
within scope if use is for purposes of advancing employee's interests.
pecking order of liability for torts
the general rule that all community property plus all of a debtor spouse's seperate property is liable for the debtor spouse's debts also applies to tort liabilities. However, california family code section 1000 creates a pecking order of liability in this area that turns on whether a community or seperate tort is involved. But note that to the extent a spouse's tort liability is satisfied by liability insurance proceeds, the pecking order statute does not apply.
liability for debts at dissolution by death
unlike the situation at divorce, dissolution of the community by death does not absent failure of a creditor to assert his rights-releive any community property from liability for a debt imposed on it prior to the death.
bankruptcy of partnership vs. partners individually
destruction of a partnership as a bankrupt does not operate to declare the partners bankrupt. Nor does the bankruptcy of a partner extend to the partnership or its assets.
devolution of property at death
-seperate property
a decedent spouse may by will dispose of her seperate estate (excluding quasi community property) as desired, subject to liability to creditors and to statutorty protections for the surviving spouse (like family allowances). At least one third of the seperate property passing intestate goes to the surviving spouse.
duties of principal/rights of agent
a principal also owes duties to her agent. Generally, the principal must deal with the agent fairly and in good faith and act in accordance with the terms of the agency contract. A principal has a duty of compensation to the agent and reimbursement. The principal must cooperate with agent and not prevent the agent from doing her duties. If the principal breaches these duties, the agent may seek indemnification from the principal, put a lien on his property, etc. however, the agent cannot obtain specific performance.
Generally, an employer is ________ for the negligence of an employee.HOWEVER, a ________ is NOT liable for the negligence of a ________.
Generally, an employer is LIABLE for the negligence of an employee.HOWEVER, a BAILOR is NOT liable for the negligence of a BAILEE.
agent contracts with third party: liability of principal
principal is liable if agent acted with P's authority
Actual Express Authority & how to revoke?
Oral, Private, Narrow - note "equal dignity rule" exception.

Can revoke with 1) death or incapacity of principal, 2) unilateral act of either party
contract in name of principal (disclosed principal cases)
If the agent negotiates a contract in the name of the principal, the agent is not a party to the contract unless the agent and third party agree otherwise. Thus she is not liable on the contract and is not entitled to enforce it aginst any other party or to otherwise assert any rights under it. The other party to the contract is liable directly to the principal and vice versa.
employee going to and from work
an employee's actions of going to and from work or meals is ordinarily considered outside the scope.
authorization by emploer not required
it is not necessary to show that the employer authorized or permitted the particular act that caused the injury if the act occurred in the scope of the employee's regular duties and employment.
LIABILITY OF PARTIES - THIRD PARTY VS. AGENTThe agent's liability depends on whether the principal was disclosed.(1) DISCLOSED PRINCIPAL - A disclosed principal is ______ liable on the K, and the agent is generally ____ LIABLE.
LIABILITY OF PARTIES - THIRD PARTY VS. AGENTThe agent's liability depends on whether the principal was disclosed.(1) DISCLOSED PRINCIPAL - A disclosed principal is ALWAYS liable on the K, and the agent is generally NOT LIABLE.(2) PARTIALLY DISCLOSED AND UNDISCLOSED PRINCIPALS - Results in liability for BOTH the principal AND the agent.
What are the three main agency problems?
1) Liability of principal to 3rd. parties for torts of an agent
2) Liability of principal to 3rd parties for contracts entered by an agent
3) Duties which agents owe to principals
other rights and duties of partners to each other
absent provisions to the contrary in the partnership agreement, the law imposes the following rights and duties:management, books and records;information, profits and losses, distributions from partnership.
rule applies only to property titled in decedent
sec. 802 applies only to property to which the decedent had title at death. This it is directed at the surviving ex spouse who cliams against the decedent's estate that an asset not divided at divorce was former community property still half owned by the surviving ex spouse. sec. 802 presumes the property was during the marriage seperate property of the decedent.
effectof one party's lack of good faith
a spouse aware of the invalidity of the marriage probably could not invoke the rules applicable to putative marriage, although the other spouse in good faith would be able to do so.
when getting a divorce and one spouse has paid a down payment for a house-
reimbursement not buy in to title is the remedy.
An employee can LEAVE the scope of his employment by taking a ________.This is a trip well outside the range of that __________.NOTE: A mere _______ is NOT ENOUGH to _______ the prinicpal from liability.
An employee can LEAVE the scope of his employment by taking a FROLIC.This is a trip well outside the range of that AUTHORIZED.NOTE: A mere DETOUR is NOT ENOUGH to RELEASE the prinicpal from liability.
principal's duty to deal fairly and in good faith
a principal has a duty to deal with the agent fairly and in good faith, including a duty to provide the agent with information about risks of physical harm or pecuniary loss that the principal knows, has reason to know, or should know are present in the agent's work but unknown to the agent.
CIA agent published a book, but he had a fidiciary duty that he breached and therefore:
all profits from book go to CIA as a contstructive trust. It doesnt matter if CIA was harmed or not by book, thats not the point. He still breached his duty.
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