1. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 1 Agency Chapter 17 BUSINESS LAW TODAY Essentials 9 th Ed. Roger LeRoy Miller - Institute for University Studies, Arlington, Texas Gaylord A. Jentz - University of Texas at Austin, Emeritus

2. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2 Learning Objectives  What is the difference between an employee and an independent contractor?  How do agency relationships arise?  What duties do agents and principals owe to each other?  When is a principal liable for the agent’s actions? When is the agent liable?  What are some of the ways in which the agency relationship can be terminated?

3. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3 Agency Relationships  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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4  Agency is a “fiduciary” relationship based on trust and confidence.  Key: Distinguish Employee vs. Independent Contractor Relationships.  Employer Employee Independent Contractor Agency Relationships

5. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5x 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 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? Determining Employee Status

6. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6 Determining Employee Status  Determining whether the worker is an employee or an independent contract affects liability of Principal/Employer. Tax Liability: Employer liable if employee. Tax Liability: Employer liable if employee. Contract Liability: Employer not necessarily liable. Contract Liability: Employer not necessarily liable. Tort Liability: Employer liable for torts of employee within scope of employment. Tort Liability: Employer liable for torts of employee within scope of employment. CASE 17.1 Lopez v. El Palmar Taxi, Inc. (2009). El Palmar did not exercise control over the cab driver and was therefore not liable for Lopez’s injuries. CASE 17.1 Lopez v. El Palmar Taxi, Inc. (2009). El Palmar did not exercise control over the cab driver and was therefore not liable for Lopez’s injuries.  Employee Status and “Works for Hire.”

7. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7  Consensual Agreement.  No consideration required.  Principal needs contractual capacity, Agent does not.  Can be for any legal purpose. How Agency Relationships Are Formed

8. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8  Agency by Agreement. Formed through express consent (oral or written) or implied by conduct. 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. Principal either by act or by agreement ratifies conduct of a person who is not in fact an agent. How Agency Relationships are Formed

9. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9  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. 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. Agency based on social duty is formed in certain situations when the Agent is unable to contact the Principal. Necessaries for family. Necessaries for family. Emergency. Emergency. How Agency Relationships are Formed

10. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10  Performance: reasonable diligence and skill (special skills).  Notification to Principal.  Loyalty (no conflict of interest).  Obedience.  Accounting. Agent’s Duties to the Principal

11. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11  Compensation (Express or Implied).  Reimbursement and Indemnification.  Cooperation.  Provide safe working conditions. Principal’s Duties to Agent

12. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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.  Actual Authority: express or implied.  Apparent Authority: estoppel, emergency.  Apparent Authority: estoppel, emergency.  Ratification.  Ratification. 

13. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13 Actual Authority: Express  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: “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.Officer acting for Corporation. Agent acts in Principal’s presence.Agent acts in Principal’s presence.  Power of Attorney (ordinary v durable).

14. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14 Actual Authority: Implied  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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15 Apparent Authority and Estoppel  Apparent Authority: Principal, by either word or act, causes 3rd party to reasonably believe that Agent has authority to act for Principal.  Estoppel: If 3rd party changes legal position by relying on Principal’s representations, Principal is estopped from denying Agent had authority to contract.  CASE 17.2 Ermoian v. Desert Hospital (2007). Physicians working at clinic were “ostensible agents” of the hospital based on clinic’s actions which created the appearance the hospital was the provider of care.

16. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16 Ratification 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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17 Liability for Contracts  Principals are classified as: Disclosed: identity known to 3rd party. Disclosed: identity known to 3rd party. Partially Disclosed: 3rd party knows he is dealing with Agent, but doesn’t know Principal’s identity. Partially Disclosed: 3rd party 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. Undisclosed: 3rd party does not know he is dealing with an Agent, and Principal’s identity is totally unknown.

18. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18 Liability: Authorized Acts  A 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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19 Liability: Authorized Acts  If undisclosed Principal, Principal is liable for the contract unless: Principal expressly excluded. Principal expressly excluded. Contract is a negotiable instrument. Contract is a negotiable instrument. Agent’s performance is personal. Agent’s performance is personal. 3rd party would not have contracted if he knew the Principal’s identity. 3rd party would not have contracted if he knew the Principal’s identity.

20. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 Liability: Unauthorized Acts  Unauthorized acts occur outside of Agent’s express, implied or apparent authority.  If Agent has no authority, Principal is not liable, but Agent is personally liable.

21. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21 Liability for E-Agents  Authorized versus Unauthorized Acts.  The Uniform Electronic Transactions Act. E-Agents may enter into binding agreements on behalf of the principal. E-Agents may enter into binding agreements on behalf of the principal. An E-Agent must provide confirmation of order to prevent errors. An E-Agent must provide confirmation of order to prevent errors.

22. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22  Agent is liable to 3rd party for his own torts.  Principal may be liable for Agent’s torts if they result from: Principal’s own tort. Principal’s own tort. Principal’s authorization of tortious conduct. Principal’s authorization of tortious conduct. Agent’s unauthorized but fraudulent conduct made within scope of agency. Agent’s unauthorized but fraudulent conduct made within scope of agency. Liability for Negligence: Respondeat Superior.  Liability for Negligence: Respondeat Superior.  Liability for Torts and Crimes

23. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23 Liability for Agent’s Negligence  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.”   CASE 17.3 Warner v. Southwest Desert Images, LLC. (2008). The agent (Hogatt) is not excused from sharing liability with principal-employer (SDI) when he disregards instructions given by employer.

24. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24X Did the act involved a serious crime? X Did Employer have reason to know Employee would do the act? X Did Employer furnish instrumentality (tools)? X Did act advance Employer’s interests? X Was act commonly performed by Employees? ?? The Time place and purpose of act ( factually based) X Was 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) Determining the ‘Scope of Employment’

25. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25 Respondeat Superior Issues  Detour vs. Frolic (Fact-Based). Principal will generally not be liable with a “detour” in the scope of employment. Principal will generally not be liable with a “detour” in the scope of employment. Frolic is purely personal. Frolic is purely personal.  Employee Travel Time.  Notice of Dangerous Conditions.

26. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26  Principal liable for intentional torts committed within 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. Liability for Agent’s Intentional Torts

27. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27  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. Liability for Contractor’s Torts

28. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28 Liability for Agent’s Crimes General Rule: Agent is liable, Principal is not, unless: Principal authorized or participated in crime. Principal authorized or participated in crime. Some jurisdictions hold Principal liable for violating statutes. Some jurisdictions hold Principal liable for violating statutes.

29. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29 Worke r P Generally Not Liable (unless strict liability) Outside CSE-P Not Liable Within CSE -P Liable “ Scope of Employment” (p.504) Independent Contractor Employee Factors (p. 490) Principal Liability: Review

30. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30 How Agency Relationships Are Terminated  Agency can be terminated by: An Act of the Parties; or  An Act of the Parties; or  By Operation of Law.  By Operation of Law.   Once agency terminated Agent has no actual authority to bind the Principal, but may have apparent authority to bind Principal.

31. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31  Lapse of Time.  Purpose Achieved.  Occurrence of a Specific Event.  Mutual Agreement.  Termination by One Party.  Notice of Termination. Termination by Parties

32. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32  Death or Insanity of either Principal or Agent: automatic.  Impossibility.  Changed Circumstances.  Bankruptcy.  War. Termination by Law