Law of Torts + Agency
Tortious Liability
Interfering with the enjoyment of another's land (nuisance, trespass to land)
Defamation (libel and slander)
Intentionally/ negligently causing physical injury to anther (trespass to person and negligence)
Remedies for Victims of Torts
Injunction
Specific restitution of property
Damages
Vicarious Liability
The employer is responsible for employee's negligence
Respondeat Superior
Agency
Law of Agency
Creation of Agency
By Necessity or Operation of Law
By Agreement
By Ratification
Impliedly by the action or behavior of the parties
Created expressly by way of a legally binding written or oral contract
By Estoppel
'an agent of necessity' because of the duty imposed by him
Ratification sets up two things retrospectively: the agency r/s between the principal and agent and the contractual r/s between the principal and the third party
Bound by any such agreement, and 'estopped' from disclaiming the agency
Notes regarding 3rd party
Principal may be bound by agent contracting with the 3rd party
Protects 3rd Party
Presumption of an agency r/s by the 3rd party
3rd Party must show that principal's conduct led a reasonable man to believe that the agent was in fact the principal's agent
When there is no Real Agency r/s is created between agent and principal...
Undisclosed Principal
the agent does not disclose his principal's identity and information etc.
Types of Agency
Sub-Agency
Sole and Exclusive Agency
Commission-sharing agreement
Sole Agency
Agency as a contract of Uberrimae Fidei
Contract of Utmost Good Faith
Caveat Emptor (buyer beware)
Estate Agent
Authority of an Estate Agent
Actual Authority
Apparent Authority
Authority which the principal has expressly or impliedly conferred upon the agent
Is the agent's authority as it appears to third party
Can be Agency by Estoppel
What the agent can and cannot do?
The general authority to find a purchaser does not normally give the agent the right to enter into a binding contract either for sale or lease on behalf of the principal unless a proper Power of Attorney (P.A.) by deed is given
Limits of authority
An estate agent's business is to find offers and submit them to owner
He has no authority to enter into a contract on behalf of the owner
Duties
Duty to Act Honestly
Duty to carry out instructions
Implied duties - stemmed from good faith and loyalty
Duty to exercise reasonable care and skill
Delegation - agent cannot delegate performance
Duties arising from fiduciary nature of agency r/s
Duties to third party
Right to Remuneration (or Commission)
That he is the effective cause of the happening of the commission earning event
Termination of Agency
By Passage of Time
By Performance
By Agreement
By Operation of Law
Revocation by Principal
Renunciation by Agent
Effects of Termination on 3rd Party
The ending of the contract does not necessarily terminate the agent's apparent authority or usual authority
Tort of Negligence
3-step test to establish...
Breach of Duty of Care by Agents
Causation
Remoteness of Damages
Defences
Contributory Negligence
Volenti Non Fit Injuria
The standard of care depends on foreseability
Man's carelessness in looking after own safety
'No injury is done to one who consents'
Harm suffered voluntarily does not constitute a legal injury and is therefore not actionable
Elaboration on Law of Torts
Definition
Tort of law is a civil wrong arising from an act or failure to act. A person who acted negligently is a person who has departed from the conduct expected a reasonable prudent person acting under similar circumstances
Ingredients
Breach of this legal Duty (Reasonable Test)
Caused recoverable loss or damage ('But for' Test)
Duty of care (Neighbour Principle - You must take reasonable care to avoid acts and omissions which you can reasonably foresee who would likely injure your neighbour
Loss or damage must not be too remote - must be a foreseeable type
Remedies for BDOC
Liquidated damages
Rescission of contract
Forfeiture of commission
Note: Tort Feasor - commits a wrong in Tort