Creation - Next Generation Bar Exam

  1. A man asks his neighbor, without pay and without any writing, to sell his car for him, and the neighbor agrees. What relationship has been created?
    An agency, with the man as principal and the neighbor as agent. Consent and control suffice; neither compensation nor a writing is required.
  2. Under the equal dignities rule followed in some states, what authority must an agent have to sign a contract that must be in writing?
    Written authority. The rule extends the statute of frauds to the grant of authority itself.
  3. What is the status of an agency in which the agent receives no compensation?
    It is a valid gratuitous agency, carrying the same fiduciary duties. Compensation is not an element of agency.
  4. A creditor of a grain company exercises veto power over the company's finances and operations and directs its daily business. What relationship may the court find?
    An agency, with the creditor as principal. Pervasive control by the creditor can make it a principal liable for the debtor's obligations.
  5. What capacity must an agent have?
    Only the capacity to perform the act; a minor may serve as an agent. The legal effect of the act falls on the principal, not the agent.
  6. What element distinguishes agency from other relationships in which one person acts for another?
    The principal's right to control the agent's conduct of the undertaking. The principal need not actually exercise control; the right to control suffices.
  7. What formalities are required to create an agency?
    Ordinarily none; neither a writing nor consideration is required. Some states require written authority for an agent to sign contracts that must themselves be in writing.
  8. What weight does a label in the parties' agreement, such as 'not an agent,' carry in deciding whether an agency exists?
    It is not controlling; the facts of the relationship determine whether an agency exists. Courts look to the substance of the relationship, not to what the parties call it.
  9. When may an agent appoint a subagent?
    When the agent has actual or apparent authority from the principal to do so. A subagent acts for both the appointing agent and, through it, the principal.
  10. What capacity must a principal have to create an agency?
    Capacity to take the action personally that the agent is authorized to take. A principal cannot enlarge its own powers by acting through an agent.
  11. How is an agency relationship created?
    By the principal's manifestation that the agent shall act on its behalf and subject to its control, and the agent's consent. Agency is a consensual, fiduciary relationship.

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