COMM 315 Final: COMM_315_Final_Notes

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31 Jul 2016
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04-Nov-08
MANDATES (p.51)
[2130] Definition of mandate:
Mandator = Principal, 3rd party
Mandatary = Agent
k = contract, 1/3 = third party
Power of attorney = written document evidencing your right to act on behalf of another
person.
[2131] Ignore (living will)
[2132] Acceptance of mandate can be either expressed or tacit1i.e. the agent must accept the
mandate.
[2133] Two types of mandates:
Gratuitous = without compensation (between two “natural” persons)
Onerous = for money (between professional and natural person)
This is not public order, you can reverse it
[2134] Money?
Onerous: if no price mentioned, assume whatever the usual rate is (e.g. if you ask the prof
for legal advice, he could send you a bill even if he didn’t tell you he was charging you)
Gratuitous: if between two persons then free
[2135] Two classifications of mandates:
Special e.g. = mom, sell my house
General e.g. = job offer overseas, mandate mom to do everything while I’m gone
[2136] Implied activities (“incidental”) are included in mandate
e.g. to sell house, implied that need notary, put money in bank, etc., but it doesn’t mean to
sell my car, too
[2137] A mandate doesn’t need to spell out everything the Agent needs to do if the tasks are part
of the Agent’s profession
e.g. If you hire a lawyer, you don’t have to tell the lawyer what to do
1 unvoiced or unspoken ; understood without being openly expressed; implied
P –––– A1/3
kk
Mandate
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Obligation of the Agent towards the Principal (a trust obligation because the principal is
trusting the agent and the agent must act in the best interest of the principal)
[2138] “Agent has to act in the shoes of the Principal”
“the basic fiduciary duty2 owed by Agent towards Principal”
[2139] Obligation of information:
A must keep P informed as to what’s going on (when asked or when needed)
[2140] The rules:
1. A must personally fulfill mandate (unless P authorizes substitution); but
2. A can replace himself if unforeseen circumstances (e.g. an accident or illness) prevent him
from fulfilling mandate
[2141] Situations with substitutes:
1. If A has no authorization to substitute, then A is liable for acts by Substitute
2. If A has authorization to Substitute himself, then A is only liable for:
a. Quality of Substitute
b. Instructions given
Only way A not liable is if S is good quality and A gave good instructions. i.e. the
agent selects the right substitute and gives the right instructions, but the substitute
messes up.
In all cases: S is liable, i.e. you can sue the substitute.
[2142] Unless prohibited, the Agent can use an assistant
But the A is liable for all acts of the assistant
[2143]
Agent can’t fulfill interests of both Principals that have conflicting interests.
oA has to tell both Ps there are competing interests
A’s duty becomes acting impartially to both Ps
2 Fiduciary Duty = the duty of trust
P1AP2
P A 1/3
2149 - 2158
2138 - 2148 2159 - 2160
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[2144] This is one mandate with several agents for the same business:
All of the Agents must agree to work on the same business
They are jointly and severally liable3 – and each and every Agent can be sued even if only
one A is at fault
03-Mar-08
[2145]
[2146] Remedy and Recourse Section – what you can do if an A breaches trust. The P can give
any of the following 3 information to his agent:
1. Confidential info: If A uses the confidential information. Then he lies to P and makes money
for himself instead of for P with info, then P can sue for his enrichment. If the agent tells P
the truth, but the P doesn’t like it, then A can go ahead and if he makes money for himself
from that information, P cannot sue him because A told P the truth.
2. Property: A can’t use property unless P says it’s okay. If A uses it without authorization,
then A has to pay rent to P.
3. Money: If A makes money on P’s money, he has to pay interest to P; unauthorized interest,
etc., goes to P.
IN GENERAL, AGENT CANNOT USE P’S PROPERTY WITHOUT HIS AUTHORIZATION.
[2147] No one associated with A can be the 1/3. E.g. the agent can not sell P’s house to his wife
or relatives.
Because of conflict of interest
Unless A has P’s permission
Nullity = contract is cancellable by P
Obligations of Principal to Agent
[2148] Court can limit damages payable by a gratuitous A
[2149] P can’t make A’s job difficult
[2150] P has to pay A’s reasonable out of pocket expenses + pay him what he’s entitled to
[2151] P has to pay interest on A’s [2150] expenses from the day they are disbursed.
Must express interest rate per anum
[2152] During mandate:
3 Jointly and severally liable: no need to split financial consequences equally, can go after any or all
P
A1 A2 A3
P A 1/3
P1/3
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