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38.4 Summary and Exercises

Summary

An agent is one who acts on behalf of another. The law recognizes several types of agents, including (1) the general agent, one who possesses authority to carry out a broad range of transactions in the name of and on behalf of the principal; (2) the special agent, one with authority to act only in a specifically designated instance or set of transactions; (3) the agent whose agency is coupled with an interest, one who has a property interest in addition to authority to act as an agent; (4) the subagent, one appointed by an agent with authority to do so; and (5) the servant (“employee” in modern English), one whose physical conduct is subject to control of the principal.

A servant should be distinguished from an independent contractor, whose work is not subject to the control of the principal. The difference is important for purposes of taxation, workers’ compensation, and liability insurance.

The agency relationship is usually created by contract, and sometimes governed by the Statute of Frauds, but some agencies are created by operation of law.

An agent owes his principal the highest duty of loyalty, that of a fiduciary. The agent must avoid self-dealing, preserve confidential information, perform with skill and care, conduct his personal life so as not to bring disrepute on the business for which he acts as agent, keep and render accounts, and give appropriate information to the principal.

Although the principal is not the agent’s fiduciary, the principal does have certain obligations toward the agent—for example, to refrain from interfering with the agent’s work and to indemnify. The employer’s common-law tort liability toward his employees has been replaced by the workers’ compensation system, under which the employee gives up the right to sue for damages in return for prompt payment of medical and job-loss expenses. Injuries must have been work related and the injured person must have been an employee. Courts today allow awards for psychological trauma in the absence of physical injury.

Exercises

  1. A woman was involved in an automobile accident that resulted in the death of a passenger in her car. After she was charged with manslaughter, her attorney agreed to work with her insurance company’s claims adjuster in handling the case. As a result of the agreement, the woman gave a statement about the accident to the claims adjuster. When the prosecuting attorney demanded to see the statement, the woman’s attorney refused on the grounds that the claims adjuster was his—the attorney’s—agent, and therefore the statement was covered by the attorney-client privilege. Is the attorney correct? Why?
  2. A local hotel operated under a franchise agreement with a major hotel chain. Several customers charged the banquet director of the local hotel with misconduct and harassment. They sued the hotel chain (the franchisor) for acts committed by the local hotel (the franchisee), claiming that the franchisee was the agent of the franchisor. Is an agency created under these circumstances? Why?
  3. A principal hired a mortgage banking firm to obtain a loan commitment of $10,000,000 from an insurance company for the construction of a shopping center. The firm was promised a fee of $50,000 for obtaining the commitment. The firm was successful in arranging for the loan, and the insurance company, without the principal’s knowledge, agreed to pay the firm a finder’s fee. The principal then refused to pay the firm the promised $50,000, and the firm brought suit to recover the fee. May the firm recover the fee? Why?
  4. Based on his experience working for the CIA, a former CIA agent published a book about certain CIA activities in South Vietnam. The CIA did not approve of the publication of the book although, as a condition of his employment, the agent had agreed not to publish any information relating to the CIA without specific approval of the agency. The government brought suit against the agent, claiming that all the agent’s profits from publishing the book should go to the government. Assuming that the government suffered only nominal damages because the agent published no classified information, will the government prevail? Why?
  5. Upon graduation from college, Edison was hired by a major chemical company. During the time when he was employed by the company, Edison discovered a synthetic oil that could be manufactured at a very low cost. What rights, if any, does Edison’s employer have to the discovery? Why?
  6. A US company hired MacDonald to serve as its resident agent in Bolivia. MacDonald entered into a contract to sell cars to Bolivia and personally guaranteed performance of the contract as required by Bolivian law. The cars delivered to Bolivia were defective, and Bolivia recovered a judgment of $83,000 from MacDonald. Must the US company reimburse MacDonald for this amount? Explain.
  7. According to the late Professor William L. Prosser, “The theory underlying the workmen’s compensation acts never has been stated better than in the old campaign slogan, ‘The cost of the product should bear the blood of the workman.’” What is meant by this statement?
  8. An employee in a Rhode Island foundry inserted two coins in a coin-operated coffee machine in the company cafeteria. One coin stuck in the machine, and the worker proceeded to “whack” the machine with his right arm. The arm struck a grate near the machine, rupturing the biceps muscle and causing a 10 percent loss in the use of the arm. Is the worker entitled to workers’ compensation? Explain.
  9. Paulson engaged Arthur to sell Paul’s restored 1948 Packard convertible to Byers for $23,000. A few days later, Arthur saw an advertisement showing that Collector was willing to pay $30,000 for a 1948 Packard convertible in “restored” condition. Arthur sold the car to Byers, and subsequently Paulson learned of Collector’s interest. What rights, if any, has Paulson against Arthur?

Self-Test Questions

  1. One who has authority to act only in a specifically designated instance or in a specifically designated set of transactions is called

    1. a subagent
    2. a general agent
    3. a special agent
    4. none of the above

  2. An agency relationship may be created by

    1. contract
    2. operation of law
    3. an oral agreement
    4. all of the above

  3. An agent’s duty to the principal includes

    1. the duty to indemnify
    2. the duty to warn of special dangers
    3. the duty to avoid self dealing
    4. all of the above

  4. A person whose work is not subject to the control of the principal, but who arranges to perform a job for him is called

    1. a subagent
    2. a servant
    3. a special agent
    4. an independent contractor

  5. An employer’s liability for employees’ on-the-job injuries is generally governed by

    1. tort law
    2. the workers’ compensation system
    3. Social Security
    4. none of the above

Self-Test Answers

1. c

2. d

3. c

4. d

5. b