Agency part 4

Question 1

general liability of a principal to a general contractors torts

Answer 1

Generally, a principal is not liable for an independant contractors torts even if they are committed in the performance of the contract

Question 2

Exception to general principal liability for general contractor torts

Answer 2

can be liable when the activity for which the independant contractor was hired is “abnormally dangerous”

Question 3

The agent is a fiduciary to of the principal

Answer 3

he has obligation to act in the principals best interests rather than his own

Question 4

3 major duties on the agent

Answer 4

1. loyalty,
2. care,
3. obedience

Question 5

The duty of loyalty requires, among other things:

Answer 5

1. account to the principal for all profits from the tranaction that have not been promised by the agen by contract
2. refrain from acting as or on behalf of an adverse party
3. refrain from competing with the principal
4. refrain from using the principals property or confidential information for personal purposes or for a 3rd party
5. disclose relevent information to the principal
6. segergate the principals property and keep and render accounts, and
7. act in accordance with a general duty of good conduct

Question 6

The agent must perform any

Answer 6

contractual duties owed to the principal

Question 7

all profits mafe by an agent in the course of an agency belongs to the principal whether

Answer 7

they are the fruits of performance, or the violation of an agent’s duty

Question 8

with respect to principals and agents who are individuals, the death of either the principal or agent

Answer 8

terminates the agency relationship

Question 9

When not individuals, the agency relationship is terminated when the principal or agent

Answer 9

ceases to exist, commences a process that willl lead to cessation of existance, or has its powers of operations suspeded

Question 10

13 changed circumstances that may cause a agency relationship to terminate

Answer 10

1. lapse of time
2. accomplishment of authorized act
3. happening of specified events
4. happening of unspecified events or changes
5. chenge in value or business conditions
6. loss or distruction of subject matter
7. loss of qualification of principal or agent
8. disloyalty of agent
9. bankrupcy of agent
10. bankrupcy of principal
11. war
12. change of law
13. impossibility

Question 11

The agent may continue to have apparent authority to third parties who lack notice of

Answer 11

termination

Question 12

Apparent authority terminates when it

Answer 12

is no longer reasonable for the 3rd party to believe that the agent continues to act with actual authority

Question 13

The principal or agent may terminate the agency relationship at will, even when

Answer 13

such termination constitutes a breach of contract
- the breaching party will be liable under contract law for any damages cause to the other party

Question 14

Apparent authority, not otherwise terminated, terminates when the third party has notice of:

3 answers

Answer 14

1. the termination of the agents authority
2. a manifestation by the principal that he no longer consents
3. facts, the failure to reveal which, were the transaction with the principal in person, would be grounds for recission by the principal

Question 15

Scope of employment

forbidden acts

Answer 15

Although forbidden, or done in a forbidden manner, may be within the scope of employment

Question 16

Scope of employment

criminial or tortious acts

Answer 16

an act may be within the scope of employment although consciously criminal or tortious

Question 17

Where a partys non-performance contributes materially to the non-occurance condition of the duties

Answer 17

the non-occurance is excused

Question 18

A principal is not liable for physical harm caused by the negligent physical conduct of a non-servant agent during the performance of the principal’s business, if he

Answer 18

neither intended nor authorized the result nor the manner of
performance, unless he was under a duty to have the act performed with
due care.

Question 19

A principal is subject to liability for physical harm to the person or the
tangible things of another caused by the negligence of a servant or a non-servant agent:

Answer 19

• (a) in the performance of an act which the principal is under a duty to have performed with care; and
• (b) in the making of a representation which the agent is authorized or apparently authorized to make or which is within the power of the agent to make for the principal.

Question 20

A person who makes a contract with another to perform services as an agent for him is subject to a duty to act

Answer 20

in accordance with his promise

Question 21

unless otherwise agreed, a paid agent is subject to a duty to the principal to act with a

Answer 21

standard of care and with skill which is standard in the locality for the kind of work which he is employed to perform it and, in addition to exercise any special skill that he has

Question 22

unless otherwise agreed, a gratuitious agent is under a duty to the principal to act with

Answer 22

the care and skill which is required of person not agents performing similar gratuitious undertakings for others

Question 23

Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for

Answer 23

the benefit of the principal in all matters connected with his agency.

Question 24

Unless otherwise agreed, an agent who makes a profit in connection with transactions conducted
by him on behalf of the principal is under a duty to

Answer 24

give such profit to the principal.

Question 25

Unless otherwise agreed, an agent is subject to a duty to the principal not to

Answer 25

- use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency or - in violation of his duties as agent, - in competition with or to the injury of the principal, - -on his own account or on behalf of another, although such information does not relate to the transaction in which he is then employed, - unless the information is a matter of general knowledge.

Question 26

If an agent has received a benefit as a result of violating his duty of loyalty, the principal is entitled to

Answer 26

- ecover from him what he has so received, its value, or its proceeds, and also the amount of damage thereby caused; - except that, if the violation consists of the wrongful disposal of the principal’s property, the principal cannot recover its value and also what the agent received in exchange therefor.

Question 27

A principal who has recovered damages from a third person because of an agent’s violation of his duty of loyalty is entitled nevertheless to

Answer 27

obtain from the agent any profit which the agent improperly received as a result of the transaction

Question 28

An agents actual authority may be terminated by:

Answer 28

1. The agents death (cessation of existance, or suspension of powers) or 2. The principals death, cessation of existance, or suspension of powers 3. the principals loss of capacity 4. An agreement between the agent and the principal of the occurance of circumstances on the basis of which the agent should reasonably conclude that the principal no longer would assent to the agents taking action on the principals behalf 5. A manifestation of revocation by a principal to the agent, or of renunciation by the agent to the principal 6. the occurance of circumstances specified by statute

Question 29

Notwithstanding any agreement between principal and agent, an agents actual authority terminates if the agent

Answer 29

renounces it by a manifestation to the principal or if the prinipal revokes the agents actual authoerity by a manifestation to the agent. - A revocation or renunciation is effective when the other party has notice of it

Question 30

A principals manifestation of revocation is unless otherwise agreed, is innefective to terminate

Answer 30

a power given as security or to terminate a proxy to vote securities or other membership or ownership interests that is mafe irrevocable i compliance with applicable legislation

Question 31

# Material benefit arising out of position An agent has a duty not to acquire

Answer 31

a material benefit from a third party in connection with transactions conducted with transactions conducted or other actions taken on behalf of the principal or otherwise through the agents use of the agents position

Question 32

An agent has a duty not to deal with the principal as or on behalf of an adverse party in a

Answer 32

transaction connected with the agency relationship.

Question 33

A principal may consent to conduct by an agent that would otherwise constitute a breach of the

Answer 33

agents duties

Question 34

A]n agent whose acts on behalf of a party consist solely of ministerial acts that require no exercise of discretion, judgment, or skill does not act on behalf of that party for purposes of determining

Answer 34

whether the agent acts adversely to another principal. Thus, one principal’s agent who performs only ministerial acts for another does not become a dual agent.

Question 35

Subject to any agreement with the principal, an agent has a duty to the principal to act with the ____ ,_____ ,____ normally exercised by agents in similar circumstances

Answer 35

care, competence, and dillagence

Question 36

special skills or knowledge possessed by an agent are circumstances to be taken into account in determining whether the agent acted with

Answer 36

due care, competence, and dilligence

Question 37

If an agent claims to possess special skills or knowledge, the agent has a duty to the principal to act with the

Answer 37

care, competance, and dilagence normally exercised by agents with such skills or knowlege

Question 38

# conflict with laws the court will applt the law of the state with the

Answer 38

most significant relationship to the partnership and transaction at issue - the parties may choose to vary this resukt by agreement

Question 39

A choice of law provision will be invalidated only if:

Answer 39

1. there is no substantial relationship between the state whose law is chosen and the parties of the transaction at issue, and there is no other reasonable basis for the parties choice, or 2. the state whose law would otherwise applied has a materially greater interest in the controversy and has a fundamental policy interest that would be contravened by application of the chosen states law

Question 40

# borrowed servent outcome for liability - factor test

Answer 40

1. extent of control over details and timing of work 2. employees work and special employees business 3. nature of the employees work 4. skills required for employees work 5. degree of customary supervision 6. duration 7. equiptment and instrumentalities 8. payment

Question 41

A disclosed principal is when

Answer 41

you know the name of the principal

Question 42

a partially disclosed principal/unidentified principal is when

Answer 42

you know theres a principal but not their name

Question 43

an undisclosed principal is when

Answer 43

you do not know there is a principal

Question 44

# respondeat superior employee/servent commit a tort + acting within scope of employment =

Answer 44

principal is liable too

Question 45

When principals are liable for actions outside the scope of employment | 4

Answer 45

1. principal intends consequences 2. non-delegable duty 3. apparent authority or aided by agency relationship 4. principals own misconduct - negligence or recklessness

Question 46

A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:

Answer 46

* (a) the master intended the conduct or the consequences, or * (b) the master was negligent or reckless, or * (c) the conduct violated a non-delegable duty of the master, or * (d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Question 47

A principal is subject to liability to a third party harmed by an agent’s conduct when the agent’s conduct is within the scope of the agent’s actual authority or ratified by the principal; and

Answer 47

* (1) the agent’s conduct is tortious, or * (2) the agent’s conduct, if that of the principal, would subject the principal to tort liability.

Question 48

A principal required by contract or otherwise by law to protect another cannot avoid liability by

Answer 48

delegating performance of the duty, whether or not the delegate is an agent.