AGENCY OUTLINE
I) WHAT IS AN AGENT?
Agency – A fiduciary relationship which results from the manifestation of consent by one person [the principal] to another [the agent] that the other shall act on his behalf and subject to his control and consent by the other so to act.
i) Consent –
(1) Actual – expressed usually in the form of K.OR implied
(2) Apparent authority – representation by P and TP detrimentally relied on the statement
ii) Principal types
(1) Disclosed – identity is known to the person transacting business with the agent
(2) Partially Undisclosed – person transacting business knows the agent is acting for another BUT does not know the principal’s identity.
(3) Undisclosed – person transacting business with the agent does not know that the agent is acting for another.
(4) Master (employer/employee)
iii) A types
(1) General – has authority to conduct series of transactions involving a continuity of service
(2) Special – has authority only for a single transaction or a series of transactions not involving a continuity of service
(3) Servant
(4) Independent contractor – P controls the ends not the means. K w/P rather than K for P. The independent contractor works for themselves thus no strict liability is assumed on the part of the P.
Qui facit per allium facit per se – to the extent an agent has the power to bind; the agent’s conduct is attributed to the principal.
The legal concept of AGENCY applies regardless of whether the parties had the legal concept in mind and regardless of whether the parties contemplated the consequences of having the label apply.
Even if the parties expressly state that the relationship IS NOT an AGENCY relationship, the parties’ self-selected label is NOT dispositive and the circumstances of the relationship are still examined to determine if it is an agency.
To form an agency relationship, 3 elements are required:
(1) Mutual consent of the parties (formal, informal, express, or implied),
· Agency by Agreement:
· Agency by Ratification: Whenever the principal accepts the benefits or otherwise affirms the conduct of one purporting to act on the principal’s behalf, even though there is no agency agreement.
(2) Agent acted on behalf of the principal, and
(3) principal controlled the agent
(1) MANIFESTATION OF CONSENT:
The creation of an agency relationship necessarily involves 2 steps:
To determine whether a would-be principal and would-be agent have consented, we look not to their inner, subjective thoughts, but rather to their outward manifestations
(i) manifestation by the principal
(ii) consent by the agent
The agency relationship itself IS NOT a contract! Sine the doctrine of CONSIDERATION belongs exclusively to the law of contracts, an agency relationship can exist even though the principal provides no CONSIDERATION to the agent.
AGENTS who act without receiving consideration are GRATUITOUS AGENTS.
An agency relationship can exist even though the parties never express their reciprocal consents in any formal fashion.
There is ordinarily no requirement that the parties consent in writing.
Exceptions when agency agreement must be in writing:
· Statute of Frauds
Land sales
· Equal Dignity Statutes
If contract that agent is entering into on behalf of principal is governed by statute of frauds and requires writing, then an agency agreement must be in writing
CONDUCT alone can suffice; words themselves ARE NOT necessary!
(2) AGENT ACTED ON BEHALF OF THE PRINCIPAL:
To create an AGENCY, the reciprocal consents of principal and agent must include an understanding that the principal is in control of the relationship.
Since the whole purpose of the relation of agency is that the agent shall carry out the will of the principal, agency CANNOT exist UNLESS the acting for party [the agent] consents to be subject to the will of the acted for party [the principal] .
The CONTROL need not be total or continuous and need not extend to the way the agent physically performs, but there must be some sense that the principal is in charge.
AT A MINIMUM, the principal MUST have the right to control the goal of the relationship.
(3) PRINCIPAL CONTROLLED THE AGENT:
To create an agency relationship, the agent MUST manifest consent to ACT FOR THE PRINCIPAL; that is, the agent MUST manifest recognition that serving
NSS exert sufficient CONTROL over local members?
Facts – Members of NSS went to cave and put up fence. Someone fell into cave and died and wrongful death lawsuit is brought on deceased’s behalf. The bylaws of NSS said that local chapters are to have complete freedom in ops; however, that they must not do anything that can injure the NSS.
Holding – The court held that NSS did not have sufficient control over members b/c they were given complete freedom and there was no control of day-to-day ops of local organizations. The only requirement is so broad that day-to-day activities are not controlled and it’s just a broad precept at best. Also, the members were not acting on behalf of the NSS. They were just acting on behalf of caves because they were interested in caves in general.
Lots of A little No
Control Control Control
Servant/Agent
Maybe Agent or IC?????? Independent Contractors
-Look for the right of control not the actual use of it
-To have vicarious liability, it must be found that there is an employer/employee relationship; agency relationship is not enough
-You are vicariously liable:
When you delegate a non-delegable duty
When you assign an inherently dangerous activity
DIERKSEN V. ALBERT
i) Main RULE from Dierksen (according to McClendon)
(5) where you have a relationship that has trust and agency elements, agency law will govern
ii) You must have donative intent to constitute a gift
iv) This case draws the distinction between agency law and trust law
(1) In an agency, title is not transferred BUT if it is, it is held on the principal’s behalf
(2) Agency relationships are revocable at the will of the principal or agent
