Agent v. Independent Contractor
Agent Independent Contractor
Represents the principal. Employed by employer.Acts under the control andinstructions of the principalActs according to his ownmethod.Principal liable for tortscommitted by agent w/inscope of authority.Employer not liable fortorts committed byindependent contractor.
Art. 1869. Agency must be express, or impliedfrom the acts of the principal, from his silence orlack of action, or his failure to repudiate theagency, knowing that another person is acting onhis behalf without authority.Agency may be oral, unless the law requires aspecific form.
Classifications of Agency: as to…1.)
Manner of Creation:a.)
: actually authorized, eitherorally or in writing.
: implied from acts of principal,from his silence or lack of action or hisfailure to repudiate the agency knowingthat another person is acting on hisbehalf w/o authority.
: agent receives nocompensation for his services.
: agent does receivecompensation.
Extent of business covered:a.)
: comprises all the business of the principal.
: comprises one or more specifictransactions.
: deemed tocomprise only acts of administration.
: authorizesonly the performance of a specific act/s.
Nature and effects:a.)
: agent acts in name andrepresentation of principal.
: agent acts in hisown name but for the account of theprincipal.
Can agency be presumed?Generally NO because the relationship between theprincipal and agent must exist as a fact. The onlyexceptions to this rule are when agency arises byoperation of law or agency is presumed to preventunjust enrichment.Form: Generally, NO formal requirements. Agent’sauthority may be oral or written, it may be in public orprivate writings. The only exception is when the lawrequires a specific form (e.g. sale of real property or anyinterest therein by an agent.)
Art. 1870. Acceptance by the agent may also beexpress, or implied from his acts which carry outthe agency, or from his silence or inactionaccording to the circumstances.
Form of Acceptance by Agent:Acceptance may be express or implied; express whenit is oral or written; implied when it can be inferred fromthe acts of the agent which carry out the agency, orfrom his silence or inaction accdg to the circumstances.
Art. 1871. Between persons who are present,the acceptance of the agency may also be impliedif the principal delivers his power of attorney tothe agent and the latter receives it without anyobjection.
Between 2 persons who are present, when it acceptancedeemed implied?When the agent receives a power of atty from theprincipal himself personally without objection.Is this presumption conclusive?NO, it can be rebutted by contrary proof.Power of attorney: An instrument in writing by whichone person, as principal, appoints another as his agentand confers upon him the authority to perform certainspecified acts or kinds of acts on behalf of the principal.Its primary purpose is to evidence the authority of theagent to 3
parties w/ whom the agent deals.ConstructionA power of atty is strictly construed and strictlypursued. The instrument will be held to grant only thosepowers which are specified, and the agent may neithergo beyond nor deviate from the power of atty. The onlyexception is when strict construction will destroy thevery purpose of the power.Meaning of “present” Not limited to face-to-face encounters. 2 personsconversing on the phone are also considered as both “present”.
Art. 1872. Between persons who are absent,the acceptance of the agency cannot be impliedfrom the silence of the agent, except:1.)
When the principal transmits his powerof attorney to the agent, who receives itwithout any objection;2.)
When the principal entrusts to him byletter or telegram a power of attorneywith respect to the business in which heis habitually engaged as an agent, and hedid not reply to the letter or telegram.
2 Ways of Giving Notice of Agency1.)
By special information; or2.)
By public advertisement.
Helen C. Arevalo 2 Section II-D