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