Chapter 28 Agency Relationships In Business

2  What is the difference between an employee and an independent contractor?  What duty to agents and principals owe to each other?  When is a principle liable for the agent’s actions?  What is an e-agent? And what legal issues do e- agents bring to agency?  What are some of the ways in which agency can be terminated?  What is the difference between an employee and an independent contractor?  What duty to agents and principals owe to each other?  When is a principle liable for the agent’s actions?  What is an e-agent? And what legal issues do e- agents bring to agency?  What are some of the ways in which agency can be terminated? Learning Objectives

3 Introduction  Agency= Principal and Agent.  Understanding agency is crucial to understanding the legal environment of business.  Principals use agents to be able to conduct multiple business operations simultaneously in various locations.  The principal has the right to control the agent in matters entrusted to the agent.  Agency= Principal and Agent.  Understanding agency is crucial to understanding the legal environment of business.  Principals use agents to be able to conduct multiple business operations simultaneously in various locations.  The principal has the right to control the agent in matters entrusted to the agent.

4  Agency is a “fiduciary” relationship based on trust and confidence.  Distinguish Employee vs. Independent Contractor Relationships.  Agency is a “fiduciary” relationship based on trust and confidence.  Distinguish Employee vs. Independent Contractor Relationships. Agency Relationships Employer Employee Independent Contractor

5 x Is there a great degree of skill required? x Does the Employer exercise a great degree of control over the details of the work? I.C. E’ee Factors Courts Consider: (“X”=Yes) x Is the worker engaged in an occupation or business distinct from Employer? x Is the work usually done under Employer’s supervision? x Does Employer provide the tools? ? How is the worker paid and how long has he been employed? Employee vs. Independent Contractor Analysis

6 Employer Liability  Determining whether the worker is an employee or an independent contract affects liability of Principal/Employer. Tax Liability: Employer liable if employee. Contract Liability: Employer not necessarily liable. Tort Liability: Employer liable for torts of employee within scope of employment.  Determining whether the worker is an employee or an independent contract affects liability of Principal/Employer. Tax Liability: Employer liable if employee. Contract Liability: Employer not necessarily liable. Tort Liability: Employer liable for torts of employee within scope of employment.

7 Agency Formation  Consensual Agreement.  No consideration required.  Principal needs contractual capacity, Agent does not.  Can be for any legal purpose.  Consensual Agreement.  No consideration required.  Principal needs contractual capacity, Agent does not.  Can be for any legal purpose.

8 Types of Agencies  Agency by Agreement. Formed through express consent (oral or written) or implied by conduct.  Agency by Ratification. Principal either by act or by agreement ratifies conduct of a person who is not in fact an agent.  Agency by Agreement. Formed through express consent (oral or written) or implied by conduct.  Agency by Ratification. Principal either by act or by agreement ratifies conduct of a person who is not in fact an agent.

9 Types of Agencies  Agency by Estoppel. Principal causes a third person to believe that another person is the Principal’s Agent, and the third person acts to her detriment in reasonable reliance on that belief.  Agency by Operation of Law. Agency based on social duty is formed in certain situations when the Agent is unable to contact the Principal. Necessaries for family. Emergency.  Agency by Estoppel. Principal causes a third person to believe that another person is the Principal’s Agent, and the third person acts to her detriment in reasonable reliance on that belief.  Agency by Operation of Law. Agency based on social duty is formed in certain situations when the Agent is unable to contact the Principal. Necessaries for family. Emergency.

10 Duties of Agents & Principals  Agent’s Duties to Principal: Performance: reasonable diligence and skill (special skills). Notification to Principal. Loyalty (no conflict of interest). Obedience. Accounting.  Agent’s Duties to Principal: Performance: reasonable diligence and skill (special skills). Notification to Principal. Loyalty (no conflict of interest). Obedience. Accounting.

11 Principal’s Duties to Agent  Compensation (Express or Implied).  Reimbursement and Indemnification.  Cooperation.  Provide safe working conditions.  Compensation (Express or Implied).  Reimbursement and Indemnification.  Cooperation.  Provide safe working conditions.

12 Agent’s Authority  Principal is liable for acts entered into by Agent when she gives Agent either actual or apparent authority: Actual Authority: express or implied. Apparent Authority: estoppel, emergency and ratification.  Principal is liable for acts entered into by Agent when she gives Agent either actual or apparent authority: Actual Authority: express or implied. Apparent Authority: estoppel, emergency and ratification.

13 Express Authority  Can be oral or written. “Equal Dignity Rule”: if law requires written contract, Agent’s authority must be in writing. Failure to comply with the rule renders contract voidable. Exceptions: Officer acting for Corporation. Agent acts in Principal’s presence.  Power of Attorney (ordinary v durable).  Can be oral or written. “Equal Dignity Rule”: if law requires written contract, Agent’s authority must be in writing. Failure to comply with the rule renders contract voidable. Exceptions: Officer acting for Corporation. Agent acts in Principal’s presence.  Power of Attorney (ordinary v durable).

14 Implied Authority  Inferred or conferred by custom, Agent’s position or what is reasonably necessary to carry out Agent’s express authority.  What the Agent reasonably thinks the Principal means.  Inferred or conferred by custom, Agent’s position or what is reasonably necessary to carry out Agent’s express authority.  What the Agent reasonably thinks the Principal means.

15 Apparent Authority  Principal, by either word or act, causes 3rd party to reasonably believe that Agent has authority to act for Principal.  If 3rd party changes legal position by relying on Principal’s representations, Principal is estopped from denying Agent had authority to contract.  Principal, by either word or act, causes 3rd party to reasonably believe that Agent has authority to act for Principal.  If 3rd party changes legal position by relying on Principal’s representations, Principal is estopped from denying Agent had authority to contract.

16 Ratification Authority 1. Agent must act on behalf of Principal. 2. Principal must affirm entire deal. 3. Principal must affirm before 3rd party withdraws from transaction. 4.Principal and 3rd party must have legal capacity to contract when Agent made the deal. 5. Principals must know all the material facts involved in the transaction. 1. Agent must act on behalf of Principal. 2. Principal must affirm entire deal. 3. Principal must affirm before 3rd party withdraws from transaction. 4.Principal and 3rd party must have legal capacity to contract when Agent made the deal. 5. Principals must know all the material facts involved in the transaction.

17 Liability for Contracts  Principal’s liability for Agent’s contract depends on whether Agent’s actions were authorized or unauthorized.  Principals are classified as: Disclosed: identity known to 3rd P. Partially Disclosed: 3rd P knows he is dealing with Agent, but doesn’t know Principal’s identity. Undisclosed: 3rd party does not know he is dealing with an Agent, and Principal’s identity is totally unknown.  Principal’s liability for Agent’s contract depends on whether Agent’s actions were authorized or unauthorized.  Principals are classified as: Disclosed: identity known to 3rd P. Partially Disclosed: 3rd P knows he is dealing with Agent, but doesn’t know Principal’s identity. Undisclosed: 3rd party does not know he is dealing with an Agent, and Principal’s identity is totally unknown.

18 Liability: Authorized Acts  Disclosed or partially disclosed Principal is liable to 3rd party if Agent acts within scope of authority.  Agent has no liability to 3rd P for disclosed Principal’s non-performance. (Agent may be liable if Principal is partially disclosed).  Disclosed or partially disclosed Principal is liable to 3rd party if Agent acts within scope of authority.  Agent has no liability to 3rd P for disclosed Principal’s non-performance. (Agent may be liable if Principal is partially disclosed).

19 Liability: Authorized Acts  If undisclosed Principal, no liability unless: Principal expressly excluded. Contract is a negotiable instrument. Agent’s performance is personal. 3rd party would have contracted if he knew the Principal’s identity.  If undisclosed Principal, no liability unless: Principal expressly excluded. Contract is a negotiable instrument. Agent’s performance is personal. 3rd party would have contracted if he knew the Principal’s identity.

20 Unauthorized Acts  Unauthorized acts outside of Agent’s express, implied or apparent authority.  If Agent has no authority, Principal is not liable, but Agent is liable.  Unauthorized acts outside of Agent’s express, implied or apparent authority.  If Agent has no authority, Principal is not liable, but Agent is liable.

21 Principal’s Liability For Agent’s Torts & Crimes  Agent is liable to 3rd party for his own torts and crimes.  Principal may be liable for Agent’s torts if they result from: Principal’s own tort. Principal’s authorization of tort. Agent’s unauthorized but fraudulent conduct made within scope of agency. Respondeat Superior   Agent is liable to 3rd party for his own torts and crimes.  Principal may be liable for Agent’s torts if they result from: Principal’s own tort. Principal’s authorization of tort. Agent’s unauthorized but fraudulent conduct made within scope of agency. Respondeat Superior 

22 Scope of Employment  Applies only to Employer-Employee relationships.  Principal/Employer is vicariously liable for Agent/Employee’s negligent torts if committed within the Agent’s “course and scope of employment” (respondeat superior).  Applies only to Employer-Employee relationships.  Principal/Employer is vicariously liable for Agent/Employee’s negligent torts if committed within the Agent’s “course and scope of employment” (respondeat superior).

23 Scope of Employment XDid the act involved a serious crime? XDid Employer have reason to know Employee would do the act? XDid Employer furnish instrumentality (tools)? XDid act advance Employer’s interests? XWas act commonly performed by Employees? ??The Time place and purpose of act (factually based) XWas Employee’s act authorized by Employer? Employer NOT Liable Employer Liable Factors: For Principal to Be Liable, Agent’s Act must have occurred within the Course and Scope of Employment. (X = Yes)

24 Liability for Employee’s Intentional Torts  Principal liable for intentional torts committed with the scope of employment.  Employee is a tortfeasor as well.  Employer is liable for Employee’s acts which Employer knew or should have known the Employee had a propensity to commit.  Principal liable for intentional torts committed with the scope of employment.  Employee is a tortfeasor as well.  Employer is liable for Employee’s acts which Employer knew or should have known the Employee had a propensity to commit.

25 Liability for Independent Contractor’s Torts  First determine whether worker is employee or independent contractor.  General rule: Employer is not liable for acts of independent contractors because Employer no right to control.  Exception: hazardous activities  Independent Contractor is liable for her own torts.  First determine whether worker is employee or independent contractor.  General rule: Employer is not liable for acts of independent contractors because Employer no right to control.  Exception: hazardous activities  Independent Contractor is liable for her own torts.

26 Worke r P Generally Not Liable (unless strict liability) Outside CSE-P Not Liable Within CSE -P Liable “ Course and Scope of Employment” Independent Contractor Employee Factors Liability: Review

27 Liability for Agent’s Crimes General Rule: Agent is liable, Principal is not, unless: Principal authorized or participated in crime. Some jurisdictions hold Principal liable for violating statutes. General Rule: Agent is liable, Principal is not, unless: Principal authorized or participated in crime. Some jurisdictions hold Principal liable for violating statutes.

28 E-Agents  Autonomous or semi-autonomous internet programs that interact with people or other programs to execute specific tasks, including the searching, ordering and delivery of goods via “point and click” electronic contracts on the internet.  Generally, these agents have at least apparent authority to act for and bind Principal who is estopped.  UCITA and new UCC-2 provide for e-agents.  Autonomous or semi-autonomous internet programs that interact with people or other programs to execute specific tasks, including the searching, ordering and delivery of goods via “point and click” electronic contracts on the internet.  Generally, these agents have at least apparent authority to act for and bind Principal who is estopped.  UCITA and new UCC-2 provide for e-agents.

29 Agency Termination  Agency can be terminated by: An Act of the Parties; or By Operation of Law.  Once agency terminated Agent has no actual authority to bind the Principal, but may have apparent authority to bind Principal.  Agency can be terminated by: An Act of the Parties; or By Operation of Law.  Once agency terminated Agent has no actual authority to bind the Principal, but may have apparent authority to bind Principal.

30 Termination By Action of the Parties  Lapse of Time.  Purpose Achieved.  Occurrence of a Specific Event.  Mutual Agreement.  Termination by One Party.  Notice of Termination.  Lapse of Time.  Purpose Achieved.  Occurrence of a Specific Event.  Mutual Agreement.  Termination by One Party.  Notice of Termination.

31 Termination By Operation of Law  Death or Insanity of either Principal or Agent: automatic.  Impossibility.  Changed Circumstances.  Bankruptcy.  War.  Death or Insanity of either Principal or Agent: automatic.  Impossibility.  Changed Circumstances.  Bankruptcy.  War.