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MGMT 311 > Chapter 19 > Flashcards

Chapter 19 Flashcards

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1
Q

Agent

A

A person who agrees to represent or act on behalf of another

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2
Q

Principal

A

The person whom the agent represents or acts on behalf of

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3
Q

Fiduciary

A

A person having a special duty created by his agreeing to act for the benefit of another (act in the best interest)

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4
Q

Fiduciary Relationship

A

One that involves trust and confidence

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5
Q

Employer - Employee Relationships

A

All employees that deal with the public are considered agents

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6
Q

Employer - Independent Contractor Relationship

A

Construction (an independent contractor would be the person laying the floors) Independent contractor subs choose which builders they go and work for. They are paid by the job - not a salary.

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7
Q

Determining Employee Status

A
  1. How much control can the employer exercise over the details of the work?
  2. Is the worker engaged in an occupation or business distinct from that of the employer?
  3. Is the work usually done under the employer’s direction or by a specialist without supervision?
  4. Does the employer supply the tools at the place of work?
  5. For how long is the person employed?
  6. What is the method of payment - by time period or at completion of the job?
  7. What degree of skill is required of the worker?
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8
Q

What is the most important question in determining employee status?

A

How much control can the employer exercise over the details of the work?
CAN: at any moment could the employer take control? Does the employer have the RIGHT to control the details?

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9
Q

IRS Criteria

A

Benefit for an employee (incentive to misclassify employees) not ethical or legal - Accountants could face professional liability if they misclassify employees

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10
Q

Power of Attorney

A

Real Estate contracts must be written. Power of attorney - Hailey and her husband want to sell their house. Her husband will be out of town. In Texas - community property (every piece of property is owned by both parties who are married) husband could put a power of attorney in place, saying that Hailey could sign on behalf of him

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11
Q

Works for Hire

A

“If I created it, I own it”
Generally if the copyrightable work is created by the EMPLOYEE, it is classified as “work for hire” and the EMPLOYER owns it - you could have an agreement with your employer that says otherwise, but generally the employer owns it

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12
Q

Agreement between an independent contractor…

A

If the copyrightable work is owned by an independent contractor

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13
Q

An Agency Relationship can be formed in 4 ways

A
  1. Agency by Agreement
  2. Agency by Ratification
  3. Agency by Estoppel
  4. Agency by Operation of Law
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14
Q

Agency by Agreement

A
  1. May be an expressed agreement
  2. May be an implied agreement
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15
Q

Hailey gives Rebekah permission to use her credit card. Oral agreement - she can use the card for gas and food.

A

Agency by Agreement

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16
Q

Agency by Ratification

A

Principal accepts actions of another

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17
Q

Hailey does not have the credit card, but she takes Hailey’s credit card without permission. Hailey can ratify her actions - ratification. Hailey can handle the fact that she didn’t have permission a different way

A

Agency by Ratification

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18
Q

Agency by Estoppel

A

Principal is forced by law to accept the actions of another because principal gave the reason to believe an agency relationship existed
1. The principal’s action creates the appearance of an agency that does not actually exist
2. A third person reasonably believed that the agency existed

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19
Q

Agency by Operation of Law

A

(emergency powers) an agent is needed due to an emergency

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20
Q

You have a car accident and you’re in a coma. your parents would step in and make decisions for you. Or if you’re married, your spouse would step in.

A

Agency by Operation of Law

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21
Q

Express Authority

A
  • Can be either oral or written
  • Authority is clear, direct, and in definite terms
  • Equal Dignity Rule
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22
Q

Equal Dignity Rule

A

in most states: IF the contract being executed is or must be in writing, then the agent’s authority must be in writing, too.

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23
Q

What is the best evidence of authority?

Study These Flashcards
A

Written form - power of attorney

24
Q

Exceptions to Equal Dignity Rule

Study These Flashcards
A
  1. Executive officer in a corporation when acting for the corporation in an ordinary business situation
  2. When the agent acts in the principal’s presence
  3. When agent’s act of signing is merely perfunctory (superficial)
25
Could there be an agency by agreement, but the agent acts outside the scope of the agreed upon authority?
Agency by Ratification
26
Hailey's husband can't sign because both of his hands are broken and in casts. Husband is sitting there where Hailey signs for their house, she doesn't need written proof, he is sitting right there.
"Agent acts in the principal's presence"
27
Legally a signature is not required, it just makes sense for everyone to feel better if there is signature
"Agent acts of signing is merely superficial"
28
Power of Attorney:
Special or general - gives an agent express authority (is the best evidence of express authority)
29
Implied Authority
1. Pattern of Conduct 2. Apparent Authority and Estoppel
30
Disclosed Principal Principal = Peter Piper Agency = Andy Amos
Andy Amos, Agent for Peter Piper Agent has no contractual liability for principal's nonperformance (as long as he did everything he was supposed to do within scope)
31
Partially Disclosed Principal Principal = Peter Piper Agency = Andy Amos
Andy Amos, Agent Andy is initially treated as a party to the contract and can be liable for principal's nonperformance. As long as Andy is within the scope of his authority, he will not ULTIMATELY be sued
32
Why would the principal want Andy to keep his position secret?
The deep pocketed principal would like to remain in the shadows - helps with negotiations
33
Undisclosed Principal Principal = Peter Piper Agency = Andy Amos
Andy Amos Agent is liable but is entitled to indemnification from principal, most commonly done on accident
34
Unauthorized Acts
If the agent has stepped outside of the scope of their authority, they are liable, not the principal (One exception) we are assuming that the principal has not seen the actions and ratified them
35
Disclosed Principal
Principal's identity is known by the 3rd party at the time the contract is entered into with the agent
36
Partially Disclosed Principal
The principal's identity is not known by the 3rd party, but the 3rd party knows that the agent is or may be acting for a principal at the time of the contract
37
Undisclosed Principal
Principal's identity is totally unknown by the 3rd party, and the 3rd party has no knowledge that the agent is acting on the principal's behalf at the time of the contract
38
Generally speaking the employer is responsible for the...
the workplace, and likely liable for the tort committed (employer is liable for himself committing the tort and the employees committing torts) - distinction between employees and independent contractors is important
39
Employer is directly liable for harm to the third parties due to...
the employer's own negligence in hiring/retention of employees
40
Harrison v Tallahassee Furniture Co.
On January 1, 1986, Harrison was brutally attacked in her home by John Allen Turner, a furniture deliveryman employed by Tallahassee Furniture. The attack left Harrison with permanent scarring and disfigurement, loss of one eye, and partial paralysis in both hands. Harrison filed suit, alleging in her complaint that Tallahassee Furniture was negligent in hiring and retaining Turner.
41
Respondent Superior
The employer (principal) is liable for any harm caused to a third party by an employee (agent) committed by the employee within the course and scope of employment "Let the master respond"
42
(2 part analysis for Respondent Superior) The employer's liable for any harm caused to a third party by:
1. An employee 2. If the harm is committed within the course and scope of employment
43
What is course and scope of employment?
Are we doing the employer's business? If you have a car accident heading into work, you are not at work now, you are responsible for the car accident not the employer. BUT if the employer sends you on a special errand, but you are on the way home from work. You are now in the course and scope of employment.
44
Going and Coming Rule
Employee traveling to and from work is NOT acting in course and scope of employment.
45
Are traveling salespersons generally under the scope of employment?
Yes
46
Special Errand Exception
If employee is on a special errand for employer at time of accident, employer IS liable
47
Detour
Employee is still in the course and scope of employment A personal errand that stays in the course and scope
48
Frolic
Employee is outside the course and scope A personal errand, but seems you are ignoring the effects it has on the employer - takes you OUTSIDE the course and scope
49
Studebaker v Netties Flower Shop
(Helps identify employer v independent contractor and detour v frolic) Uses his own van that needs A/C, is not given a uniform, indicates independent contractor, BUT right to control (employee) Studebaker goes on a personal errand to a pawn shop between flower deliveries. On his way back to work he gets in a car accident (doesn't delay business: courts say he is an employee and not at fault) Employer is at fault - DETOUR
50
If Studebaker would have gone to a bar instead of a pawn shop would the employer be liable?
No, the stop would have been considered a FROLIC - he would have been ignoring the effect of the stop on the employer
51
Liability for Independent Contractor's Torts
Person who hires an independent contractor is NOT liable if a 3rd party is injured by the acts of the independent contractor in performing the contract
52
Exceptions to the Liability for Independent Contractor's Torts
1. Right to control 2. Inherently Dangerous/Hazardous Activities
53
Right to Control
Those that hired the employee don't have control
54
Inherently Dangerous Activities
Anything highly risky (dangerous transportation) Anything toxic/explosive (fireworks)
55
Liability for Agent's Crimes
An agent is liable for their own crimes Principal/Employer is NOT liable for an agent's crime even if the crime was committed within the scope and course of employment
56
What is the exception to liability for agent's crimes?
If the principal/employer participated in the crime by conspiracy or some other action

MGMT 311 (17 decks)

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