Review questions 1 con law supremacy clause The constitution is the law of the land as stated in article 6 of the US constitution When federal law and state law have a direct conflict federal law trumps state law 2 torts negligence Negligence occurs when someone suffers an injury because of someone else failure to live up to their duty of care The person committing the tort does not wish to cause harm to the other person or believes that it will happen The risk must be foreseeable a person that is in the same position would anticipate the risk and protect against it Plaintiff must prove 1 Duty the defendant owed a duty of care to plaintiff 2 Breach the defendant breached that duty 3 Causation the defendant s breach caused the plaintiffs injury 4 Damages the plaintiff suffered a legal recognizable injury 3 employment excuses from work 4 arbitration and reward setting aside of it Arbitration is when an arbitrator hears a dispute and imposes a resolution for the dispute The arbitrator will set the reward and it is legally binding the only way for a reward to be set aside is if the award is the result of corruption fraud the arbitrator exhibited corruption or bias the arbitrator refused to postpone the hearing despite sufficient cause refusing to hear evidence or the arbitrator exceeded his or her powers of failed to use them to make a mutual final and definite award 5 court system Chapter 20 Agency Law the agent will act on behalf of the principle in business transactions with a third party fiduciary trust and confidence a person having certain duty because they undertook a task Employer Employee relationship normally employee is agent of the employer principle ie salesperson and employer Any representation make by the employee is binding to the employer agency laws and employment laws go hand in hand but agency laws reach more than employment law Independent contractors are not agents because they are not controlled by the principle you may set up an agency relationship with independent contractors depending on the situation ex the owner of a property hires a real estate broker to sell her property this is an agency relationship because the real estate broker is representing the owner during this transaction determining if someone is an employee or independent contractor Criteria used by courts 1 how much control does the employer have in the details of the work 2 does the worker have business outside of working with this employer 3 is the work done under the employers supervision 4 does the employer supply the tools 5 how long has this person been employed 6 what is the method of payment biweekly or at completion 7 how much skill is required for this work Criteria used by the IRS how much control the business has over the worker when copyrighted material is created by an employee the employer owns the rights to it because it is classified as work for hire if an independent contractor creates something copyrighted it belongs to them unless it is agreed in writing that the employer has the rights Forming an Agency relationship Agency by agreement empresses or implied agreement that the agent will act for the principle and the principle agrees to have the agent act expressly written contract or oral agreement implied by conduct when a principle only used one provider for a service and dictate how to provide service then the provider can assume they are an agent for the principle Agency by ratification a person who is not an agent or acting outside of their authority can make a contract on behalf of another if that person affirms it by word or action It involves a question of intent and expressed by words or conduct Agency by estoppel when a 3rd party reasonable believes that a person is an agent of another and acts in a self harming way because of that belief the supposed agent and principle cannot deny the agency relationship facts and circumstances must prove that an ordinary reasonable person with the same knowledge would also believe that there is an agency relationship the supposed agents actions do not create a agency by estoppel it is the actions and statements of the principle that would create an agency by estoppel Agency by operation of the Law the courts may find an agency relationship where there is not formal agreement in cases of spouses and when an agent not acting outside the scope of their authority can cause the principle a large loss Agents duty to the principle Performance the agent must perform ordinary care or special skill depending on what skill set they claim to have An agent will breach the contract if they do not perform the task asked of them if an agent is working for free than they have no legal liabilty but have tort liability Notification the agent must notify the principle whenever they become aware of something pertaining to the agency duty of notification or duty to inform legally notice to the agent is notice to principle because of the duty to inform Imputed Knowledge Rule Loyalty Agent must act only for the benefit of the principle not of the agent or third party this include confidentiality Obedience the agent must follow all legal and clear instructions from the principle agent can break this duty in emergency situations where the principle cannot be reached Acting in good faith and in benefit of principle is obedience Accounting the agent has the duty to keep account of all funds received and paid out in behalf of the principle this includes gifts Principles duty to the agent Compensation principle has the duty to pay the agent in timely manner reimbursement and indemnification principle must pay the agent back when they spend money to fulfill the request of the principle not if negligent The principle has a duty of indemnification compensation to the agent for any liabilities incurred because of lawful and authorized actions taken on behalf of the principle cooperation duty to cooperate and help the agent in performing the duties safe working conditions equipment environment conditions duty to inspect and warn Agents Authority Express Authority Authority declared in clear direct and defined terms Equal dignity Rule if the contract is in writing the agents authority must also be in writing if it is not in writing the principle can void the contract Power of Attorney gives someone power in specified occasions or general business transactions It is a written document and is usually notarized Implied Authority The authority to do what is
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