BLAW 308 notes PDF

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BLAW 308 notes  Agency: relationship btwn. A principal and an agent. Agency law is state law (vary in the state)  Agency relationship are formed consensual orally (informal) or written (formal). Criteria lawful purpose (ex. can’t hire hitman) and anyone can be an agent (except minors, etc.) Exist in. 1) expressed agency: party from the agency relationship by makin a written or oral agreement. 2) Agency by implied authority: agency relationship is implied by the conduct of the parties. 3) Apparent agency: the principal falsely leads a third party to believe another individual serves as his or her agent. 4) Agency by ratification: an individual misrepresents himself as another party’s agent and the principal accepts the unauthorized act.  1. Expressed agency--Durable power of attorney: a document that states either the power of the agent is to continue to be effective if the principal becomes incapacitated or the power of the agent is to take effect after the principal has become incapacitated.  Power of attorney: a document giving an agent authority to sign legal documents on behalf of the principal; the power can be general or specific, limiting the authority of the agent.  2. Agency by implied authority—Legal Principle: Agency by implied authority CANNOT conflict with any expressed authority.  Apparent agency or “agency by estoppel”: the agent has apparent authority to act thus the principal is estopped or prevented from denying that the individual is an agent.  3. Agency by ratification—requires 1. An individual must misrepresent himself or herself as an agent for another party. 2. The principal must accept or ratify the unauthorized act. 3. The principal must have complete knowledge of all material facts regarding the contract. 4. The principal must ratify the agent’s act. (the principal cannot accept certain parts of the agent act and reject others)  Agency relationships:  Principal-agent relationship: typically exists when an employer hires an employee to enter into contracts on its behalf.  Employer-employee relationship: employer hires an employee to perform physical service and the employee is subject to the employer’s control.  Employer-independent contractor: employer has no control over details of conduct of independent contractor.  Employee vs. independent contractor.  Independent contractor isn’t controlled by employer, supplies tools, etc.  Principals duties to the agent: the principal owes specific duties to the agent. Failure to fulfill these duties provides the basis for a tort or contract action against the principal.  Principal duties: compensation, reimbursement and indemnification, cooperation, and sage working conditions.  Agent duties: Loyalty, notification, obedience, accounting, and performance.  Constructive trust: equitable trust imposed on someone who wrongfully obtains or holds legal right to property they should not possess. 

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Power of Attorney is a special type of express agent authority, usually in writing, granting an agent specific powers. It is form in two basic types 1. “Special” power of attorney which grants the agent exress authority over specifically outlined acts. Or 2. “General” power of attorney which allows the agent to conduct all business for the principal. Powers of Attorneys can end in the principal’s death or incapacitation which is “durable power of attorney” specifying that the agent’s authority is intended to continue beyond the principal’s incapacitation. Classifying Principal:

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Disclosed principal: When the third party is aware that the agent is making an agreement on behalf of a principal and also knows who the principal is Partially or Unidentified principal: the third party is aware of the principals existence but not his or her identity Undisclosed principal: the third party does not know that an agent is acting on behalf of a principal. “respondeat superior”: Latin phrase meaning “Let the superior speak.” Applies in the context of the principal/employer-agent/employee relationship. Or whether the agent/employee was acting in the scope of employment In the same way the principal is responsible for the negligent acts of the employee under the doctrine; the principal may also be liable for any intentional torts of the employee. Vicarious liability: Held by principal/employer, which is liability assigned without fault, for any harm the agent/employer causes while working for the principal. In other word the principal/employer is at fault even though he was not at fault but because he hired a negligent agent. Unless the negligent employee had substantial departure or “frolic oh his own” then no. “Right of indemnification” the right to recover damages. However if the employee is innocent of negligence, the employer is also free of liability. “Misrepresentation liability” depends on whether the principal authorized the agent’s act. The principal is always liable in tort to someone who relied on the agent’s misrepresentation. The only time the principal can be liable for the crime of an agent is when the principal has authorized the criminal act. Parties can choose to terminate an agency relationship or it may terminate automatically by the lapse of time, fulfillment of purpose, or operation of law. Agent’s apparent authority continues until the principal “notifies” third parties that the relationship has ended. “Actual Notice” must be given to third parties who have had business interactions with agent; it directly informs them, orally or in writing, that the agency agreement has been terminated. “Constructive Notice”: parties not directly related to an agency agreement which is how the termination of an agency agreement is generally announced. Usually consist in publication in newspaper.

Principals tort Liability -Direct Liability -Indirect liability -agents who are employees -agents who are independent contractors -Liability for agent’s misrepresentations Employees -a principal who has a higher degree of control -employee (based on degree of control test) -respondent superior – principal will be liable for the negligence of the agent. Agent was negligent in the scope of employment 1) Work 2) Type TTPP

Independent contractors -nondelegable duty -inherently dangerous activity

3) Place 4) Purpose Workers compensation Coverage -employee -sole remedy Work-related injury requirement 1) Injury occurred in course and scope of employment 2) Injury arose out of employment Type -Positional risk test – was he put in that position -increased risk test – Wrongful termination - Employment at will vs. employment for a term - Exceptions to employment at will o Express or implied promise by employer o Public policy Title VII – Civil Rights Act - Covered employers - Protected classes- race, gender, color, national origin, religion - Proof of discrimination Disparate treatment Disparate impact - Employer defenses – seniority, merit, BFOQ Disparate Treatment - Specific - targets one or more classes - Express – there’s a policy or job description - Intentional – decision upfront not to hire Disparate Impact - facially neutral – believes they are doing something good discriminatory effects - unintentional – effects people unintentionally Sexual harassment - harassment can also occur based on race, religion, national origin, or color - two alternative ways to prove: 1) quid pro quo harassment – this for that - must prove tangible job consequences - applies to supervisors 2) hostile work environment - must be severe and widespread - applies to co-workers and supervisors Partnerships 1) General Partnerships A) Sharing profits B) Sharing management  Creation and characteristics  Partnership property  Transfer of partnership interests -by assignment

Purpose Place Time

-by charging order 2) Limited partnerships  Limited liability RUPA 1) Intent of partners (agreement of partners) Other factors  Who paid for it, who’s name is on the title/deed/receipt  Who pays taxes, expenses, insurance, etc. Purported Partnership 1) Person consents, acts, or represents him/herself as a partner to a third party 2) Third party reasonably believes or relies on this 3) This party transacts business with the partnership Fiduciary Duties of Partners 1) Loyalty  No self-serving (conflict of interest)  No competing  Confidentiality 2) Care 3) Service 4) Act within actual authority 5) Accounting a. Record keeping b. Inspect books 6) Disclose information Partners contract Liability 1) Actual Authority -expressed – by partner agreement, by partnership agreement -implied – based on express authority - isn’t said you can haggle price but its implied – based on nature of the business 2) Apparent Authority – based on reasonable belief of third party as to partner’s authority – prior experiences dealing with third party 3) Ratification – where there is no actual or apparent authority, bound if they accept contract Partners Tort Liability 1) Intentional torts – no liability, unless the partners authorized the intentional tort or it was in the ordinary scope of partnership business 2) Negligence – in ordinary course of business (TTPP) – scope of partnership business ...