I. Chapter 1 – Intro to Agency Law
A.) Statutes
i.) §33-5-101 – Registered Office & Agent
Each corporation must continuously maintain in this State:
(1) a registered office that may be the same as any of its places of business; and
(2) z registered agent, who may be:
(i) an individual who resides in this State and whose business office is identical with the registered office;
(ii) a domestic corporation or not-for-profit domestic corporation whose business office is identical with the registered office; or
(iii) a foreign corporation or not-for-profit foreign corporation authorized to transact business in this state whose business office is identical with the registered office.
ii.) §33-5-102 – Change of Registered Office & Agent
(a) A corporation may change its registered office or registered agent by delivering to the Secretary of State for filing a statement of change that sets forth:
(1) the name of the corporation;
(2) the street address of its current registered office;
(3) if the current registered office is to be changed, the street address of the new registered office;
(4) the name of its current registered agent;
(5) if the current registered agent is to be changed, the name of the new registered agent and the new agent’s written consent (either on the statement or attached to it) to the appointment; and
(6) that after the change or changes are made, the street addresses of its registered office and the business office of its registered agent will be identical.
(b) If a registered agent changes the street address of his business office, he may change the street address of the registered office of any corporation for which he is the registered agent by notifying the corporation in writing of the change and signing (either manually or in facsimile) and delivering to the Secretary of State for filing a statement that complies with the requirements of subsection (a) and recites that the corporation has been notified of the change.
iii.) §33-5-103 – Resignation of Registered Agent
(a) A corporation may change its registered office or registered agent by delivering to the Secretary of State for filing a statement of change that sets forth:
(1) the name of the corporation;
(2) the street address of its current registered office;
(3) if the current registered office is to be changed, the street address of the new registered office;
(4) the name of its current registered agent;
(5) if the current registered agent is to be changed, the name of the new registered agent and the new agent’s written consent (either on the statement or attached to it) to the appointment; and
(6) that after the change or changes are made, the street addresses of its registered office and the business office of its registered agent will be identical.
(b) If a registered agent changes the street address of his business office, he may change the street address of the registered office of any corporation for which he is the registered agent by notifying the corporation in writing of the change and signing (either manually or in facsimile) and delivering to the Secretary of State for filing a statement that complies with the requirements of subsection (a) and recites that the corporation has been notified of the change.
iv.) §33-2-102 – Articles of Incorporation
(a) The articles of incorporation must set forth:
(1) a corporate name for the corporation that satisfies the requirements of Section 33-4-101;
(2) the number of shares the corporation is authorized to issue, itemized by classes;
(3) the street address of the corporation’s initial registered office and the name of its initial registered agent at that office;
(4) the name and address of each incorporator;
(5) the signature of each incorporator; and
(6) a certificate, signed by an attorney licensed to practice in this State, that all of the requirements of this section have been complied with.
v.) §33-15-107 – Registered Office & Agent of Foreign Corporations
Each foreign corporation authorized to transact business in this State must maintain continuously in this State:
(1) a registered office that may be the same as any of its places of business; and
(2) a registered agent, who may be:
(i) an individual who resides in this State and whose business office is identical with the registered office;
(ii) a domestic corporation or not-for-profit domestic corporation whose business office is identical with the registered office; or
(iii) a foreign corporation or foreign not-for-profit corporation authorized to transact business in this State whose business office is identical with the registered office.
B.) Scope & Purpose of Agency
i.) Agency is a device that allows one person to appoint another person to act for him in such a way as to effect legal acts and liabilities.
C.) Agency Definitions
i.) Agency: The fiduciary relationship that results from the mutual manifestation of consent that one person (the agent) shall act on behalf of and subject to the control of another person (the Principal).
ii.) Principal
1.) Disclosed Principal: A principal is disclosed if the person with whom the agent is transacting business knows that the agent is acting for a principal and knows the Principal’s identity.
2.) Partially Disclosed Principal: A principal is partially disclosed if the person with whom the agent is transacting business knows that the agent is acting for a principal but does NOT know the principal’s identity.
3.) Undisclosed Principal: A principal is undisclosed if the person with whom the agent is transacting business does not know that the agent is acting for a principal.
iii.) Agent
1.) General Agent: A general agent is an agent authorized to conduct a series of transactions involving a continuity of service.
2.) Special Agent: An agent that is authorized to conduct only a single transaction or a series of transactions NOT involving continuity of service.
(a) Example
(1) P is a collector of rare music memorabilia. A rare Metallica platinum award that P has wanted for years is being auctioned off. P and A agree that A will attend the auction and purchase the award for P’s collection.
3.) Subagent: A person appointed by the Agent to perform functions undertaken by the agent for the principal.
(a) Note
(1) The Agent is primarily liable for the subagent and the Principal is secondarily liable.
(2) If the Agent is NOT authorized to appoint a subagent, but nevertheless appoints
pacity but an Agent need not.
2.) Minors
(a) Because a minor generally does NOT have the capacity to contract, she CANNOT validly appoint another as her agent, except to the limited extent of contracting for his necessities of life.
3.) Incompetents
(a) A person who is legally incompetent does NOT have the capacity to contract and CANNOT appoint an agent.
(1) If capable of performing the necessary agency functions, an incompetent CAN be appointed as the Agent of another.
iii.) NO Consideration
1.) No consideration is necessary for either party to create an agency relationship.
iv.) General Rule – NO Writing is required
1.) Statute of Frauds
(a) Requires an Agent’s authority to be evidenced by a writing signed by the Principal if the authority conferred is to execute contracts for the sale of land.
2.) Effect of NOT having a Writing
(a) If the Agent’s authority is required to be evidenced by a writing, but it is not, any contract executed by the Agent is unenforceable against the Principal, even though the contract itself is in writing.
(1) Principal’s Option
(i) The contract is voidable at the option of the Principal. Thus, if the Principal decides to accept the contract, he can subsequently ratify it in writing.
3.) Exceptions
(a) Corporate Executives: An executive officer of a corporation need not have written authority from the corporation to act on its behalf.
v.) Proper Purpose
1.) An agency may be created only for a LEGAL purpose. Where the purpose is illegal or contrary to public policy, the purported agency will be disregarded.
(a) Public Policy
(1) A Principal cannot delegate to an Agent acts that public policy requires the Principal to perform personally (i.e: voting).
(b) Personal Services
(1) Performance in a personal services contract with a third person CANNOT be delegated to an Agent (i.e: A singer cannot delegate her duty to sing at a concert to another singer)
2.) Acts Delegable by the Principal
(a) A principal MAY delegate any act to an agent which the principal could perform.
3.) Acts Delegable by the Agent
(a) Normally, an Agent has no right or power to delegate to another the obligation to perform for the Principal in his stead.
II. Chapter 2 – Authority
A.) Statutes
i.) §33-3-102 – General Powers
Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including without limitation power to:
