Agency Formation and Duties Chapter 33 Agency Formation and Duties Chapter 33: Agency Formation and Duties Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill/Irwin

Introduction to Agency Law Agency: Relationship between principal and agent Agent: One authorized to act for/on behalf of principal Principal: One who hires agent to represent him/her Fiduciary: One with duty to act primarily for another person’s benefit An agency represents the relationship between a principal and an agent. An agent is a party authorized to act for or on behalf of a principal, while a principal is the party who hires the agent for representation. A “fiduciary” has the duty to act primarily for another person’s benefit. 33-2

Creation of Agency Relationship Expressed Agency: Agency formed by making written/oral agreement Power of Attorney: Document giving agent authority to sign legal documents on behalf of principal Durable Power of Attorney: Power of attorney intended to continue to be effective/take effect after principal incapacitated Agency By Implied Authority: Agency formed by implication, through conduct of parties Agency By Estoppel: Agency formed when principal leads third party to believe that another individual serves as his/her agent (although principal had actually made no agreement with purported agent) Agency By Ratification: Agency that exists when individual misrepresents himself/herself as agent for another party, and principal accepts/ratifies unauthorized act An “expressed” agency is an agency formed by making a written or oral agreement. A “power of attorney” is a document giving an agent the authority to sign legal documents on behalf of a principal. A “durable power of attorney” is a power of attorney intended to continue to be effective or to take effect after the principal has become incapacitated. An “agency by implied authority” is an agency formed by implication, through the conduct of the parties. An “agency by estoppel” is an agency formed when a principal leads a third party to believe that another individual serves as his or her agent (although the principal had actually made no agreement with the purported agent.) Finally, an “agency by ratification” is an agency that exists when an individual misrepresents himself or herself as an agent for another party, and the principal later accepts or ratifies the formerly unauthorized act. 33-3

Requirements for “Agency By Ratification” Individual must misrepresent himself/herself as agent for another party Principal accepts/ratifies unauthorized act Principal has complete knowledge of all material facts regarding contract Principal must ratify entirety of agent’s act For an “agency by ratification” to have legal effect, the individual must misrepresent himself or herself as agent for another party, the principal must accept or ratify the unauthorized act, the principal must have complete knowledge of all material facts regarding the contract, and the principal must ratify the entirety of the agent’s act. 33-4

Agency Relationships Agency Relationship: Fiduciary relationship (relationship of trust) in which agent acts on behalf of principal Principal-Agent Relationship: Employer hires employee to enter into contracts on behalf of employer; parties have agreed that agent will have power to bind principal in contract Employer-Employee Relationship: Employer hires employee to perform certain tasks; employer has right to control conduct of employees Employer-Independent Contractor Relationship: Employer hires persons (other than employee) to conduct some sort of task; employer has no control over details of conduct of independent contractor An agency relationship is a fiduciary relationship (or a relationship of trust) in which an agent acts on behalf of a principal. In a principal-agent relationship, an employer hires an employee to enter into contracts on behalf of the employer; and the parties have agreed that the agent will have the power to bind the principal in contract. In an employer-employee relationship, an employer hires an employee to perform certain tasks, and the employer has the right to control the conduct of the employee. In an employer-independent contractor relationship, an employer hires persons (other than employees) to perform certain tasks, and the employer has no control over the independent contractors’ performance of the work. 33-5

Exhibit 33-3: Independent Contractor or Employee? Does worker engage in distinct occupation/independently established business? Is work done under employer’s supervision, or does specialist without supervision complete the work? Does employer supply the tools? What skill is required for the occupation? What is the length of time for which worker employed? Is worker a regular part of the employer’s business? How is worker paid? In order to determine whether a worker is an independent contractor or an employee, the following questions must be addressed: Does the worker engage in a distinct occupation or operate an independently-established business? Is the work done under the employer’s supervision, or does the specialist complete the work without supervision? Does the employer supply the tools used in performance of the work? What degree of skill is required for the occupation? For what length of time is the worker employed? Is the worker a regular part of the employer’s business? How is the worker paid? 33-6

Principal’s Duties To Agent Compensation Reimbursement and Indemnification Cooperation Safe Working Conditions The principal’s duties to an agent include the obligations of compensation, reimbursement, indemnification, cooperation, and the provision of safe working conditions. 33-7

Agent’s Duties To Principal Loyalty Notification Performance Obedience Accounting The agent’s duties to a principal include the obligations of loyalty, notification, performance, obedience, and accounting. 33-8

Principal’s Rights and Remedies Against Agent Constructive Trust Avoidance Indemnification A principal’s rights and remedies against an agent include the imposition of a “constructive trust,” contract avoidance, and a request for indemnification. 33-9

Agent’s Rights and Remedies Against Principal Tort and Contract Remedies Demand For An Accounting Specific Performance An agent’s rights and remedies against a principal include tort and contract remedies, the demand for an accounting, and a request for specific performance. 33-10