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Chapters 33, 34, & 42 notes

by: Carly Jermon

Chapters 33, 34, & 42 notes ACCT 324 - 004

Carly Jermon
GPA 3.2

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These notes have a lot of information that will be on our next exam. I have included graphs and charts from the textbook as well as information that was not on his slides but that he briefly discus...
Survey of Commercial Law
Julius David Johnson (P)
Survey of Commercial Law
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This 13 page Bundle was uploaded by Carly Jermon on Wednesday February 10, 2016. The Bundle belongs to ACCT 324 - 004 at University of South Carolina taught by Julius David Johnson (P) in Spring 2016. Since its upload, it has received 259 views. For similar materials see Survey of Commercial Law in Accounting at University of South Carolina.

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Date Created: 02/10/16
Accounting 324 Chapter 33: Agency Relationship: The association between one party and an agent who acts on behalf of that party. Agency: The fiduciary relationship that arises when one person consents to have another act on their behalf and subject to his control and the other consents to do so. (Agency law is primarily state law – meaning it can vary from state to state) └> A fiduciary is a person who has a duty to act primarily for another person’s benefit (trust, confidence, and good faith) └> Agency law is especially important for U.S. firms doing business globally because there are often legal difficulties due to language barriers or lack of knowledge about local laws. *Agency relationships are consensual relationships formed by informal oral agreements or formal written contracts. They can only be formed if and only if: - They are being created for a lawful purpose (illegal activities will void the relationship) - The person who is to act as an agent has contractual capacity Agency relationships can exist as one of four types: - Expressed agency - parties form the agency relationship by making a written or oral agreement - Agency by implied authority - the agency relationship is implied by the conduct of the parties - Apparent agency - the principal falsely leads a third party to believe another individual serves as their agent - Agency by ratification - an individual misrepresents himself as another party’s agent and the principal accepts the unauthorized act A gratuitous agent is one who acts without consideration – agent is not paid for their services. Expressed agency: agency created in a written or oral agreement -> also called agency by agreement (most common type of agency) A power of attorney establishes an agency by agreement that gives an agent authority to sign legal documents on behalf of the principal. A general power of attorney grants broad authority, while a specific power of attorney gives authority only for the specific areas or purposes listen in agreement. └> powers of attorney are often given for business and health care purposes Durable power of attorney is a written document expressing his or her wishes for an agent’s authority not to be affected by the principal’s subsequent incapacity └> might become active only after a principal becomes incapacitated in any matter *Sometimes, an agency relationship is not created by an express agreement but is implied by the conduct of the parties -> the circumstances determine the extent of an agent’s ability to conduct business on behalf of the principal (implied authority cannot conflict with any express authority) Apparent agency: agency relationship created by operation of law when one party, by her actions, causes a third party to believe someone is her agent even though that person actually has no authority to act as her agent (also known as agency by estoppel) └> If the principal attempts to deny that an agency relationship existed, the third party must demonstrate that he or she reasonably believe (on the basis of the principal’s conduct) that an agency relationship existed. Agency by ratification: exists when individual misrepresents themselves as agent for another party, and principal accepts/ratifies unauthorized act. <- (first 2 requirements) For ratification to be effective – - The principal must have complete knowledge of all material facts regarding the contract - The principal must ratify the entirety of the agent’s act (principal cannot accept certain parts and reject others) Principal-Agent relationship: exists when an employer hires an employee to enter into contracts on its behalf. Parties have agreed that agent will have power to bind principal in contract (Contract law) Employer-Employee relationship: whenever an employer hires an employee to perform some sort of physical service in which the employee is subject to the employer’s control. Employer has right to control conduct of employees. (9-5 jobs, restaurant workers, etc….) Employer-Independent contractor: A person who contracts with another to do something for them but who is not controlled by the other nor subject to the other’s right to control with respect to their physical conduct in the performance of the undertaking. Employer has no control over details of conduct of independent contractor (building contractors, doctors, stockbrokers, lawyers) └> not all independent contractors are agents, they cannot enter into contracts on behalf of the principal unless the principal authorizes them to do so. Independent Contractor or Employee? *The IRS must decide who is an employee and who is an independent contractor to ensure that the employer is not trying to lower their tax burdens. The classification is also important in determining who owns the output of a work project. Principal Duties: Compensation – principal compensates/pays agent for services provided unless the parties have agreed that the agent will act gratuitously. Reimbursement and Indemnification – principal must reimburse or indemnify the agent for any authorized expenditures or any losses the agent incurs in the course of working on behalf of the principal. (Suppose an agent makes an agreement with a third party on behalf of the principal and the principal fails to uphold the agreement. The third party could sue the agent for damages, but the principal has the duty to indemnify the agent for the losses the third party regains) Cooperation – principal must assist the agent in the performance of his or her duties and cannot interfere with the reasonable conduct of the agent (If you hire someone to sell your car for you, you must be willing to let the agent show the car to interested buyers) Safe working conditions – principal ensures safe working conditions and to warn the agent if the principal is aware of any potential danger. (Fed and State statutes (OSHA) set specific standards for the working environment) Failure to fulfill these duties provides the basis for a tort or contract action against the principal. Agent Duties: Loyalty – responsibility to act in the best interest of the principal, avoid conflicts of interest of the principal, and protect the principal’s confidentiality -> this duty is important because the agency relationship is founded on trust (Suppose you have hired a real estate agent to make land purchases on your behalf. A third party notifies the real estate agent that some property will soon be going up for sale and thinks you would be interested in buying it. The real estate agent cannot decide to buy that property for themselves until (1) the real estate agent has communicated the offer to you and (2) you have considered and rejected the offer) Notification – agent must notify the principal of any relevant information/offers in a timely manner (the law typically assumes that the principal is aware of all info revealed to the agent, regardless of whether the agent shares it with the principal) Obedience – agent must follow the lawful instruction and direction of the principal (An agent who makes an unauthorized agreement has failed to meet the duty of obedience) Accounting – agent must keep an accurate account of the transactions made of behalf of the principal and provide the accounting information to the principal on request (If you work on commission and when you finally get paid you believe you have been undercompensated you can ask to see the accounting and the agent must provide it) Performance – agent must perform the duties as specified in the agency agreement with reasonable skill, care, and professionalism (Suppose an insurance agent contacts you about purchasing a car insurance policy. You agree to purchase it, but for some reason the agent never obtains the policy for you. You discover the mistake when you get into a car accident. The insurance agent did not meet the duty of performance; thus you could sue the agent) Failure to fulfill duties provides the basis for a contract or tort action against the agent When an agent breaches their duties to the principal, the principal can terminate the agency relationship and seek remedies: Constructive Trust - (1) an implied trust in which a party is named to hold the trust for its rightful owner; the principal. (2) an equitable trust imposed on someone who wrongfully obtains or holds legal right to property they should not possess. (An agent who through deceit or other means retains profits or goods of the principals, that agent has breached their fiduciary duties.) Avoidance – principal’s right to nullify any contract the agent negotiated if the contract exceeds the authorities of the agent and principal agreement. Indemnification – breach caused by the agent’s negligence. (When sued by a third party, a principal may sue his agent to recover the amount assessed to the third party) Agency relationships are intended to benefit the principal, however the agent is not without rights and remedies: Tort and Contract Remedies – available when a principal violated an agency agreement Demand for an Accounting – an agent who feels they are not being properly compensated, especially when working on commission, may demand an accounting and may withhold further performance of their duties until the principal supplies appropriate accounting data. Specific performance – when a contract exists and a principal agrees to certain conditions but fails to perform, the agent may seek court assistance in forcing the principal to perform the contract as stipulated. Agency relationship must be contractual and must not be for personal services. The agent may recover for services rendered and/or future damages but may not force the principal to fulfill the specific contractual agreements or even to continue to employ the agent. Chapter 34: Power of attorney: a specific type of express authority that grants an agent specific powers Specific power of attorney: allows an agent to act on behalf of the principal only in regard to specifically outlined acts General power of attorney: allows an agent to conduct all business for the principal Durable power of attorney: a document which specifies that an agent’s authority is intended to continue beyond the principal’s incapacitation Disclosed principal: identity is known to a third party. The third party is aware that the agent is making an agreement on behalf of the principal Partially Disclosed principal (unidentified principal): identity is not known by a third party, although the third party is aware that the agent is making an agreement on behalf of a principal Undisclosed principal: principal whose existence is not known by a third party. That is, the third party does not know that an agent is acting on behalf of a principal *An agent who acts within the scope of her authority on behalf of a disclosed or partially disclosed principal is not liable for the acts of the principal. *The principal is only liable if the agent has authority to act on principal’s behalf. If the principal is partially disclosed, the agent can be held liable for contractual nonperformance because the courts generally treat the agent as a party to the contract. In certain situations the agent is the only party liable for the contract: 1. The contract expressly excludes the principal from the contract. If the principal was not a party to the contract, he or she has no liability to the agent. 2. The agent enters into a contract that is a negotiable instrument. The UCC governs negotiable instruments and states that other parties, that is, principals, cannot be liable for them if their name is not on the instrument or if the agent’s signature does not indicate that it was made in a representative capacity. 3. The third party enters into a contract with the agent such that the agent’s performance is required and the third party may reject the performance of the principal. (If the agent is a photographer and he enters into a contract for his principal without disclosing this fact, the third party may reject the principal’s attempt to fulfill the contract by taking the third party’s picture) 4. The principal or agent knows a third party would not enter into a contract with the principal if the principal’s identity were disclosed but the agent does so anyway. The agent will be the only party liable should the third party rescind the contract. If an agent has no authority to act on behalf of a principal but still enters into a contract with a third party, the principal, regardless of the classification, is not bound to the contract unless they ratify the agreement. *When an agent exceeds their authority to act on behalf of the principal, the agent will likely be personally be liable to the third party. *Agents who go beyond their authority when the principal is disclosed or partially disclosed are liable for a breath of implied warranty. General rule: when an agent commits an unauthorized act, the principal is neither bound to the contract nor liable. The law holds a principal directly responsible for his or her own tortious conduct on 2 conditions: - A principal who directs the agent to commit a tort is authorizing the agent’s unlawful behavior and thus is liable for any damages caused by the tort - If the principal fails to provide proper instruments or tools or gives inadequate instructions to the agent concerning the necessity to employ competent agents, the law holds the principal liable to a third party for negligent hiring of an agent. Respondeat Superior: Latin for “let the superior speak”; the principle by which liability for harm caused by an agent/employee is held by the principal/employer. (A hospital can be liable for a doctor’s mistake if it causes harm for the patient/party involved) Vicarious liability: The liability or responsibility imposed on a person, party, or an organization for damages caused by another; most commonly used in relation to employment, with the employer held vicariously liable for the damages caused by its employees. └> Rationale: if the employer is benefiting by the work of the employee, the employer should also be responsible for the harms the employee caused (If a delivery driver negligently injures a third party while making deliveries on behalf of the employer, both the employee and the employer will be held liable) General Rule: a principal is vicariously liable for the actions of his or her agent. *a principal may be liable for negligent hiring who fails to do a background check to learn about the tendencies of potential employees Misrepresentation liability: depends on whether the principal authorized the agent’s act If an agent has misrepresented themselves, the third party has 2 options: - Cancel the contract with the principal and be compensated for any money lost - Affirm the contract and sue the principal to recover damages General Rule: If a principal authorizes an agent to misrepresent themselves, the principal is always liable. *If the independent contractor engages in extremely hazardous activities, such as blasting operations, for the principal, the principal will be responsible for any damages by the independent contractor. *If a principal is unaware of or had no intent for the agent to commit a crime, there is no rationale for the principal’s criminal liability. The only time the principal can be liable for the crime of an agent is when the principal has authorized the criminal act. Ways that an Agency Relationship can be terminated Actual notice: Notice of agency termination that is given by directly informing third parties, either orally or in writing. Constructive notice: notice of agency termination that is usually given by publishing an announcement in a newspaper. *Parties forming a contract of agency in a foreign jurisdiction should include the conditions of a termination within the contract. Termination by the Parties Lapse of time – If an agency agreement specifies that the relationship will exist for a certain amount of time, it will end when that time expires Fulfillment of Purpose – Suppose John, a homeowner, enters into an agreement with Claire, a real estate agent, to sell his house. Once Claire succeeds in selling the house, she no longer has the authority to act on John’s behalf Occurrence of a Specific Event – depends on the agency relationships purpose Mutual Agreement by the Parties – Both parties must agree to the termination conditions Revocation of Authority – a principal can revoke an agent’s authority at any time. However, this can sometimes lead to a breach of contract. Renunciation by the Agent – An agent can terminate the agency relationship by renouncing the authority given them. The agent can be liable for breach of contract if the agency agreement stated a specific amount of time that the relationship is to exist. Agency Coupled with an Interest – an agency relationship that is created for the benefit of the agent, not the principal └> The principal may not terminate this relationship, which is also called power given as security Termination by Operation of Law Death – even if one party is unaware of the other party’s death, the relationship no longer exists Insanity – Some states have modified this law so that the agency contract still exists unless the person has been adjudicated insane Bankruptcy – if the principal or agent files a bankruptcy petition, the agency relationship is generally no longer in existence, particularly if the agent is filing for bankruptcy and his or her credit is important to the agency relationship. Insolvency, the inability to pay debts or the condition in which liabilities outweigh assets, does not necessarily result in the termination of the agency relationship. Changed Circumstances – if an unusual change leads the agent to believe that the principal’s instructions do not apply, the agency relationship terminates Change in law – when a new law makes the commission of an existing agency agreement illegal, the agreement is terminated Impossibility – If the agent loses qualifications needed to perform duties for the principal, the agency relationship also ends Disloyalty of Agent – Whenever the agent, unknown to the principal, acquires interest against the principal’s interest. Also terminated if the agent breaches the duty of loyalty they have to the principal. War – A principal has an agent in Iran authorized to conduct business dealings on the principal’s behalf. If the U.S goes to war with Iran, the agency relationship will no longer be in existence because there is no way to enforce the rights of the parties. Chapter 42: The employment relationship is a contractual relationship between the employer and the employee: The employer agrees to pay the employee a certain amount of money in exchange for the employee’s agreement to render specific services. Fair Labor Standards Act (FLSA): Federal law which requires that a minimum wage of a specified amount be paid to all employees in covered industries; also mandates that employees who work more than 40 hours in a week be paid no less than 1½ times their regular wage for all hours beyond 40 worked in a given week (overtime). FLSA excludes: *Executives *Administrative employees *Professional employees *Outside salespersons The U.S does not mandate any minimum annual vacation time for employees. Family and Medical Leave Act (FMLA): Federal act requiring that employers provide all eligible employees with up to 12 weeks of leave during any 12-month period for several family-related occurrences.  The birth of a child/adoption of a child  The placement of a foster child in the employee’s care  The care of a seriously ill spouse, parent, or child  A serious health condition that renders the employee unable to perform any of the essential functions of his or her job Who’s covered under FMLA: In order to exercise rights under FMLA an employee must give at least 30 days’ notice, or if the leave is unforeseeable the employee must inform their employer asap (defined as within one or two business days after the need becomes known). Employees can sue and recover damages if employer fails to comply with FMLA. Federal Unemployment Tax Act (FUTA): Federal law passed in 1935 that created a state system to provide unemployment compensation to qualified employees who lose their jobs. Unemployment Compensation: The state system, created by the FUTA, which provides unemployment compensation to qualified employees who lose their jobs. Each state has an account from which it can access money in accordance with state eligibility rules. Most states fund benefits though a tax on employers; only 3 states (Alaska, NJ, and Pennsylvania) require minimal employee contributions. Workers’ compensation law: A state law that provided for financial compensation to employees or their dependents when the covered employee is injured/killed on the job. This law ensures that covered workers injured on the job can receive financial compensation through an administrative procedure, rather than having to sue their employer. To recover benefits, the injured party must demonstrate that:  He or she is an employee  Both employer and employee are covered by the state workers’ comp. program  The injury occurred on the job └> premises rule: if an employee is on company property and/or travels for work and is injured on a business trip When an employee is injured on the job they must notify the employer of the injury and file a claim with the state workers’ comp board, usually within 30-60 days of the incident. If an employer CONSCIOUSLY & DELIBERATLEY INTENDED TO INFLICT INJURY ON THE EMPLOYEE, WORKERS’ COMP. DOES NOT COVER FOR DAMAGES -> the injured party can sue for tort Case 42-1: Delgado v. Phelps Dodge Chino, Inc. Reynaldo Delgado died following an explosion at a smelting plant in New Mexico, he was ordered to perform the task that killed him by his employer even though his employer knew Delgado would most certainly be injured or killed. Delgado’s widow brought tons of tort claims against Phelps Dodge. The trial court dismissed the case on grounds that workers’ comp. provided the exclusive remedy, leaving Phelps Dodge immune from tort liability. However when the trail went to Supreme Court they hold that when an employer intentionally inflicts or willfully causes a worker to suffer an injury that would otherwise be exclusively compensable under the Act that employer may not enjoy the benefits of exclusivity, and the injured party may sue in tort. Suck it Phelps Dodge! Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA): Federal law which ensures that when employees lose their jobs or have their hours reduced to a level at which they would not be eligible to receive medical, dental, or optical benefits from their employer, the employees will be able to continue receiving benefits under the employer’s policy for up to 18 months by paying the premiums for the policy. └> unfortunately the premiums for the policy are often very expensive for many to afford. COBRA does not apply if: 1. The employee is fired for gross misconduct 2. The employer decides to eliminate benefits for all current employees. Employee Retirement Income Security Act (ERISA): Federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans. Employers must provide participants with all of the following:  Plan information (features and funding)  Assurances that those in charge of managing plan assets have fiduciary responsibility  A grievance and appeals process for participants to get benefits from their plans  The right to sue for benefits and breaches of fiduciary duty Occupational Safety and Health Act (OSHA): Requires that every employer “furnish to each of his employees… employment … free from recognized hazards that are likely to cause death or serious physical harm”. OSHAdministration promulgates workplace safety standards, inspects facilities for compliance, and brings enforcement actions against violators. └> Employers must display either the federal or state OSHA poster with info about employees’ safety and health rights. *Penalties for violators may range from $0-$70,000 per violation, depending on the likelihood that the violation would lead to serious injury. Employment-at-will doctrine: Provides that either the employer or the employee can terminate the employment relationship at any time for any reason (other than discrimination). Employees who quit are not obligated by law to give a “2-weeks notice” Exceptions that allow an employee to sue for wrongful discharge:  Implied contract: provides that an implied employment contract may arise from statements the employer makes in an employment handbook or materials advertising the position. o Implied if:  The employment handbook contains the steps for progressive discipline leading to discharge  The handbook makes no mention of the words employment at will  The employee relies on that handbook  Public Policy: prohibits employers from firing employees for doing something that is consistent with furthering public policy. o Jury duty, military service, filing for or testifying at hearings for workers’ comp and whistle-blowing  Implied covenant of good faith and fair dealing: imposes a duty on the employer to treat employees fairly with respect to termination. Employers cannot fire for gender or race!! Employee Privacy in the workplace *covers matters such as employer surveillance policies, control of access to medical and personnel records, drug testing and email policy. Omnibus Crime Control and Safe Streets Act of 1968: prohibits employers from listening to the private telephone conversations of employees or disclosing the contents of these conversations. Employers may ban personal calls and monitor calls for compliance as long as they discontinue listening to any conversation once they determine it is personal. Violators may be subject to fines of up to $10,000 Electronic Communications Privacy Act (ECPA) of 1986: extended employees’ privacy rights to electronic forms of communication including e-mail and cell phones; outlaws the intentional interception of electronic communications and the intentional disclosure or use of the info obtained though such interception. └> Reasonable expectation of privacy: ECPA protects individuals’ communications against unauthorized surveillance or access; applies only minimally to communications via an employer’s equipment. (If you send an email to a friend, using your work computer and email, that incriminates you in some way then you will have no right to sue over privacy if your employer reads that email and you get thrown in jail) This expectation mostly applies to third parties such as internet service providers, cell phone companies, etc…. Labor Laws: Wagner Act of 1935: The first major piece of federal legislation adopted explicitly to encourage the formation of labor unions and provide for collective bargaining between employers and unions as a means of obtaining the peaceful settlement of labor disputes. Collective bargaining: the process whereby workers organize collectively and bargain with employers regarding the conditions of employment. Wagner Act created an administrative agency, the National Labor Relations Board (NLRB): interprets and enforces the NLRA and provides for judicial review in designated federal courts of appeal. └> Primary Functions: *Monitoring conduct of employer and union during an election to determine whether workers want to be represented by a union *Prevent and remedy unfair labor practices *Establish rules to interpret NLRA NLRB has jurisdiction over all employees except those who work in federal, state, and local government and those covered by the Railway Labor Act (independent contractors, agricultural workers, household domestics, persons employed by spouse or parent, and supervisors, managerial employees, and confidential employees) *Unions are usually formed due to employee dissatisfaction with some policy of or treatment by their employer. *If an employer refuses to recognize the local union, the union organizers can petition the NLRB for a representation election. Taft-Hartley Act of 1947 (Labor-Management Relations Act): designed to curtail some of the powers that unions had acquired under the Wagner Act; designates certain union actions as unfair. Wagner Act & Taft-Hartley Act are collectively known as the National Labor Relations Act (NLRA) Landrum-Griffin Act of 1959: primarily governs the internal operations of labor unions. It requires financial disclosures by unions, establishes penalties for financial abuses by union officials, and includes “Labor’s Bill of Rights” to protect employees from their own unions. “Good Faith” Requirement under the NLRA: Bargaining collectively in good faith means that the parties must: 1. Meet at reasonable times and confer in good faith 2. Sign a written agreement if one is reached NLRB does not require nor can they order that parties come to an agreement 3. When intent on terminating or modifying an existing contract, give 60 days’ notice to the other party, with an offer to confer over proposals, and give 30 days’ notice to the federal or state mediation services in the event of a pending dispute over the new agreement. 4. Neither strike nor engage in a lockout during the 60-day notice. The most common violation by a union is bargaining for clauses that fall outside the scope of mandatory bargaining. Strike: a temporary, concerted withdrawal of labor Boycott: a refusal to deal with, purchase goods from, or work for a business Primary boycott: boycott against an employer with whom the union is directly engaged in a labor dispute. (LEGAL) Secondary boycott: unionized employees who have a labor dispute with their employer boycott another company to force it to cease doing business with their employer. (ILLEGAL) Picketing: individuals place themselves outside an employer’s place of business for the purpose of informing passersby of the facts of a labor dispute Informational Picketing: picketing designed to truthfully inform the public of a labor dispute between an employer and the employees Signal picketing: unprotected form of picketing in which services and/or deliveries to the employer are cut off.


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