Private Ordering is the process of setting up of social norms by parties involved in the regulated activity (in some manner), and not by the State. Private Ordering aims to achieve public goals, such as efficiency, enhancing the market, and protecting rights.
Private Ordering has the advantage over public ordering in that it is set by active players in the market, including citizens and consumers, and in that in some cases, it can preempt intrusive and populist legislation. Thus, Private Ordering may protect human rights.
Fraud: Misrepresentation, Reliance, Damages
Factors to balance: Cheapest cost avoider, Internalize costs/Shirking (avoiding), Realize optimum transaction cost, Resolving conflicts b4 they become conflict
State Com. Law/Restatement(ALA): AGENCY/Sole Proprietor (unlimited liability): Agent if you have worker…Heavy Private Ordering
“Agency is the fiduciary relation that results from manifestation of consent (assetnt) by P to A that A shall act on his behalf subject to P’s control.”-Restate§1
PAT triangle(Prin,Agen,Third): a can bind P re:{Ҝ}w/T…P can bind T…Many A’s torts imputed to P…A owes fid.duty to P…Info.imputed to P from A…A’s notice/info imputed to T…P owes duties to A…A can bind p and visa versa…T cannot bind A on K…VERY fact specific…Π has burden by preponderance
T à P
Gorton v. Doty: Coach borrows car and accident.Third party suing car owner. Tort by agent (driver) imputed to principle when agent acting on behalf of principle (and subject to ctrl. of principle)
Restatement: No compensation or consideration needed for agency relationship / Also don’t need intent to make PAT / Also don’t need written {Ҝ} of such relationship (Cargill and Doty)
Green v. H&R Block Principle need no exercise physical ctrl over actions of agent…as long as P may direct the result/ultimate objective of the agent relationship.
Gay Jen.Farms v. Cargill Cargill financing Warran who buys grain from farmers and goes outta buz. Farmers sue Cargill bc they jointly liable for War.’s debt. Tinkering in day to day stuff means you have ctrl. over ops and you are principle and they your agent(slide 24)…Objective standard (look@everything+what reasonable person would conclude about relationship)….options for Cargill on slide 52
Rest14O>(CB 10-11): Creditor becomes principle@pt. which assumes de facto ctrl over conduct of debtor
Rest14K>some1 who {Ҝ}’s to acquire prop. From 3rdperson&covey to another is agent of the other only if agreed that he is to act primarily for benefit of the other and not himself.
Hunter Mining Corp. saying manufactur(w/2 distributors) liable as principle with 2 dist as agents…No liability if manu. Does not control day to day ops of dealers business…common manufacturer/dealer-distributor situation\
T à P in {Ҝ}
Rest§144: Principle subject to liability upon {Ҝ}’s made by agent acting within his authority if made in propert form & w/understanding that principle is party.
Flavors of Authority: Actual: Principles words/conduct make agent think he can act)
Apparent
v. Stefanovicz: $$$ came in for land and wife just took it.Marital relationship doesn’t make one spouse agent of another. And also you don’t necessarily ratify an agreement if you don’t understand the terms/benefits
3 Elements to show Agency Relationship: 1.Manifestation by P that A will act for him 2. Acceptance by A of undertaking 3. Understanding between parties that P will be in control of undertaking…Existance of agency is question of fact and beyond preponderance on Π.
Outboard Marine v. Little Glases Principle could have discovered material facts related to ratification by inspection of records…OPPOSITE almost of Boticcelo part 2
Restatment 43: Acceptance by P of series of acts by agent gives future authorization
Huddleson: Lady goes into store and buys furniture from salesman imposter…sues store and wins…liable under apparent authority bc store needs to protect customers
Restatement(3rd)§2.05: P liable for Agent with no authority if (1)intentionally/carelessly cause such belief or (2) having notice of such belief person did not take steps to notify them
Restatement(2nd)§161: Disclosed/Partially disclosed Principle liable for {Ҝ}’s by agent to T believes agent authorized and has no notice otherwise
