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3rd Restatement 1.
Terminology TERM 2
co agents
DEFINITION 2 have a relationship with the same principalmay be appointed by the principal or by another agent TERM 3
disclosed principal
DEFINITION 3 3P has notice that A is acting for a P and has notice of the P's identity TERM 4
undisclosed principal
DEFINITION 4 3P has no notice that the A is acting for a P, but does not have notice of the P's identity TERM 5
gratuitous agent
DEFINITION 5 acts without the right to compensation
notice
person knows the fact, has reason to know the fact, received effective notification, or should know the fact to fulfill a duty owed to another person, or knows or has reason to know to fulfill a duty owed to another person, knows or has reason to know it is imputed TERM 7
agent + notice
DEFINITION 7 agency is effective when there is a notice TERM 8
person
DEFINITION 8 an individualan organization or association that has legal capacity to possess rights and incur obligationslegal capacity to possess rights and incur obligations TERM 9
subagent
DEFINITION 9 person appointed by an agent to perform functions that the A has consented to perform on behalf of the A's principalappointing A is responsible to the P between an appointing A and the subagent is one for agency TERM 10
3rd Restatement 3.
DEFINITION 10 formal requirements
3rd Restatement 6.
agent for a disclosed principal TERM 17
agent for a disclosed principal
DEFINITION 17 acting with actual authority makes a K on behalf of an undisclosed principal (1) P is a party to the K (2) parties to the K, and (3) same rights, liabilities, and defense against each other as if the P made the K personally TERM 18
3rd Restatement 6.
DEFINITION 18 P does not exist or lacks capacity TERM 19
principal does not exist or lacks capacity
DEFINITION 19 unless the 3P agrees otherwise, purported A is a party to the K if the purported A knows or has reason to know 3P relies on A's agencyor the P does not exist or lacks capacity TERM 20
agency law
DEFINITION 20 determines when or whether one party may be held responsible for, or bound by, the actions of another and what rights and obligations those parties have to one another
3rd Restatement: Agency
agency is the fiduciary relationship that arises when one person (P) manifests assent to another person (A) that the A shall act on the P's behalf and subject to the P's control, and the A manifests assent or otherwise consents to act TERM 22
agency
DEFINITION 22 when one person (A) acts on behalf of another (P) TERM 23
tort context agency
DEFINITION 23 a determination of which parties are responsible for a wrongful act or some harm done TERM 24
K context agency
DEFINITION 24 which party/ies are bound to a contractual commitment TERM 25
principal agent relationship
DEFINITION 25 (1) P indicates that A should act on P's behalf(2) A is subject to P's control(3) A manifests consent to act for P
3rd Restatement 7.
scope of employment TERM 32
restatement scope of employment
DEFINITION 32 employee's acts are within the scope of employment when: (1) performing work assigned by the employer; OR (2) engaging in some course of conduct subject to the employer's control TERM 33
modern law scope of employment
DEFINITION 33 (1) NOT within independent course of conduct(2) intended to serve the purpose of the employer TERM 34
Birkener criteria
DEFINITION 34 (1) employee must be about the employer's business and duties assigned by the employer, rather than being wholly involved in a personal endeavor (2) employee's conduct must occur substantially within the hours and ordinary boundaries of employment; AND(3) employee's conduct must be motivated at least in part by the purpose of serving the employer's interest TERM 35
substantial diversion
DEFINITION 35 like employment abandonment
slight diversion
more likely to be seen as part of employment, but depends on specific fact situations TERM 37
lender agency
DEFINITION 37 generally lender is not a P in a debtor/borrower situation, even when they take steps to secure their interests,except when they take control in the day-to-day activities (fact specific analysis) TERM 38
actual authority
DEFINITION 38 arises when the P asks the A to do something on the P'sbehalfA has the authority to bind the P to agreements within the scope of the A's agency TERM 39
3rd Restatement Agency 1.
DEFINITION 39 manifestation TERM 40
3rd Restatement: Manifestation
DEFINITION 40 written or spoken words or other conduct
"A's understanding of P's objectives are
reasonable" rule
accords with the P's manifestations and the inferences of a reasonable person TERM 47
3rd Restatement 3.
DEFINITION 47 creation of actual authority TERM 48
3rd Restatement: creation of actual authority
DEFINITION 48 created by a P's manifestation to an A that expresses P's assentwhen the P communicates about the activities in which the A may engage in and the obligations, written or spoken, silence or implied, express or implied TERM 49
actual express authority
DEFINITION 49 clearly stated authority that P bestows the A TERM 50
actual implied authority
DEFINITION 50 thru the A's POVarises when the P does not explicitly communicate everything that the A should do on the P's behalf, but other actions that are reasonably necessary to accomplish the P's instructions/main objectives to the A, and the A's belief of reasonable actions that the P wants the A to do
inherent agency
power
common law undisclosed agency(1) undisclosed P is subject to liability if the 3P is justifiably induced to make a detrimental change, because actor acting on P's behalf and without actual authority, and P having notice of the conduct did not take reasonable steps to notify(2) undisclosed P may not rely on instructions given to an A, or reduce the A's authority, the 3P would reasonably believe the A to have under the same circumstances if the P had been disclosed TERM 52
apparent authority
DEFINITION 52 through a 3Ps POV; what a 3P reasonable believe the P authorized the A to do TERM 53
agent has apparent authority to bind P when
DEFINITION 53 (1) 3P reasonably believes A has the authority to act on P's behalf; and(2) that belief is traceable to the P's manifestation TERM 54
3rd Restatement 2.
DEFINITION 54 apparent authority TERM 55
3rd Restatement: Apparent Authority
DEFINITION 55 power held by an A or other actor for the P's legal relations that a 3P reasonably believes the actor/A has authority to act on behalf of the P, and is traceable to the P's manifestations
liability of an undisclosed principal
(1) 3P made a detrimental change in position in reliance on the agreement(2) P had notice of A's conduct and that A's conduct might induce a 3P to make a detrimental change in position; AND(3) P did not take reasonable steps to notify the 3P of the truth TERM 62
ratification
DEFINITION 62 (1) prior act done by another, as if it was done b an agent acting with actual authority(2) P ratifies by: (a) manifesting assent; (b) conduct that justifies a reasonable assumption(3) does not occur unless: (a) act is ratifiable; (b) has capacity; (c) timely; (d) all or nothing TERM 63
effect of ratification
DEFINITION 63 (1) retroactively creates the effects of actual authority(2) NOT effective when: (a) in favor of a person who causes its misrepresentation; (b) when P ratifies to avoid loss; (c) diminish the rights or other interests or persons TERM 64
ratification elements
DEFINITION 64 P must have:(1) all material facts(2) intent to ratify (express or implied) TERM 65
estoppel
DEFINITION 65 does not create a binding K and does not purport a P-A relationshipgrants authority after the fact when certain conditions are in effectprevents a P from avoiding responsibilities
3rd Restatement 2.
Estoppel TERM 67
3rd Restatement: Estoppel
DEFINITION 67 (1) P's acts/omissions that are either intentional or negligent and create an appearance of authority in the agent; AND(2) 3P reasonably and in good faith: (a) acts in reliance on appearance of authority AND (b) changes their positions in reliance on A's appearance of authority TERM 68
P subject to liability for 3P's detrimental
reliance when...
DEFINITION 68 (1) P intentionally/carelessly caused such a belief for the detrimental reliance; OR(2) P has notice of such belief AND that it might induce others to change their positions and did not take reasonable steps TERM 69
factors to show that something done was
improper
DEFINITION 69 acts/omissions which create an appearance of authorityreasonably and in good faith acts on reliance3P changes position in reliance TERM 70
lying/improper action for liability
DEFINITION 70 only a factor, not alone
respondeat superior factors
does the P exercise control over the means/manner by which A performs the work?is A engaged in distinct occupation or business?does the P supervise As work?skill required in the occupationwho supplied the materials/location?length of timepaid by time/jobbelieve there is an employee/er relationshipis P a business TERM 77
paid by job tort control
DEFINITION 77 more likely to be an independent contractor TERM 78
paid by hour tort control
DEFINITION 78 employee agent likely TERM 79
general rule of tort control liability
DEFINITION 79 generally, P is not liable for the torts of the Ps TERM 80
exceptions to the general rule of P tort
liability
DEFINITION 80 (1) tort over area where P exercised control;(2) inherently dangerous activities;(3) non delegable duty(4) negligent hiring
franchise
type of business organization where the franchisor enters into a business agreement with the franchisees, with guidance in exchange for a fee TERM 82
franchise tort liability
DEFINITION 82 (1) franchisor acted in a way to lead a reasonable person to believe the franchisee operator and/or employees were employees or agents of the franchisor(2) believed the franchisee operator and/or employees were agents or servants of the franchisor; and(3) relied to their detriment upon the skill and care of the allegedly negligent operator and/or employees of the franchise TERM 83
apparent agency for franchises
DEFINITION 83 (1) reasonable reliance by a 3P that alleged A is an A of P(2) Ps in/action creates the 3P's reasonable belief TERM 84
torts and scope of employment test
DEFINITION 84 (1) foreseeable despite all reasonable efforts for the employer to forestall(2) arises characteristically out of an in course of the action of employment; AND(3) is within the unique nexus/proximity of employment TERM 85
negligent hiring
DEFINITION 85 liability is on the P because they should have known better
UPA
Partnership TERM 92
UPA Partnership
DEFINITION 92 (1) association of two or more persons (2) to carry on a business as co owners(3) for profit TERM 93
characteristics of a
partnership
DEFINITION 93 profit sharingcontributionparticipation in managementrisk of loss TERM 94
profit sharing
partnership
DEFINITION 94 not if paid as a debt repayment, rent, or employee pay TERM 95
partnership contribution
DEFINITION 95 includes money, talent, real estate, raw materials, contact/networkig
partnership participation in management
not essential that they have a veto or control, but partners do share in management TERM 97
partnership risk of loss
DEFINITION 97 partners share in financial losses, but employees do not TERM 98
partnership
features
DEFINITION 98 liabilitiescontrolreturnstax treatmentfiduciary dutiesdistinct entity TERM 99
partnership liabilities
DEFINITION 99 each partner can create liabilities and obligationsjointly and severally liable, but if the assets are insufficient, then partners are personally liable TERM 100
partnership control
DEFINITION 100 each partner can participate in control and management
