C1 outline

2017 年 11 月 27 日
21:14

introduction
 basic problem of corporate law
o facilitating relationship between
 among the owners
 shareholders and managers
 shareholders and other stakeholders(利益相关者）
 tools
o transaction cost economics
o 所谓交易费用是指企业用于寻找交易对象、订立合同、执行交易、洽谈交易、
监督交易等方面的费用与支出，主要由搜索成本、谈判成本、签约成本与监督
成本构成。企业运用收购、兼并、重组等资本运营方式，可以将市场内部化，
消除由于市场的不确定性所带来的风险，从而降低交易费用。
o agency cost theory
代理成本，按照詹森和梅克林(Jensen and Meckling，1976)的定义，代理成本
是指委托人为防止代理人损害自己的利益，需要通过严密的契约关系和对代理
人的严格监督来限制代理人的行为，而这需要付出代价。
代理成本可化分为三部分：①委托人的监督成本，即委托人激励和监控代理
人，以图使后者为前者利益尽力的成本；②代理人的担保成本，即代理人用以
保证不采取损害委托人行为的成本，以及如果采用了那种行为，将给予赔偿的
成本；③剩余损失，它是委托人因代理人代行决策而产生的一种价值损失，等
于代理人决策和委托人在假定具有与代理人相同信息和才能情况下自行效用最
大化决策之间的差异①。显然，①和②是制定、实施和治理契约的实际成本，
③是在契约最优但又不完全被遵守、执行时的机会成本。
 Gorton v. Doty
 issue: whether an agency relationship existed between Doty（把车借给司机的教
师） and Garst(司机）.
 why did it matter？
o As principal, Doty would be liable for the actions of her agent, Garst
o vicarious liability
 An employer is subject to liability for torts committed by employees
while acting within the scope of their employment. (Restatement Third)
 Express Agency: oral or written unless the Statute of Frauds stipulates that they
must be written.

 legal standard
o manifestation of consent
o on P's behalf
o subject to P's control

 Can you form an agency relationship without even knowing that you're doing it?
o yes. even though the parties did not call it an agency and not intend the legal
consequences of the relation to follow.

 How on Doty's behalf? not really

 Evidence? Doty made Garst's driving the car a condition precedent to its use.

 control
  A “principal need not exercise physical control over the actions of its agent”
so long as the principal may direct “the result or ultimate objectives of the
agent relationship.”
 control did not require compensation or consideration.
 Restatement (Third) § 1: “Control is a concept that embraces a wide
spectrum of meanings, but:
 states what the agent shall and shall not do, in specific or general terms.
 right to give interim instructions or directions to the agent once their
relationship is established.
 as a practical matter be incomplete because no agent is an automaton
 “The power to give interim instructions distinguishes principals
in agency relationships from those who contract to receive services
provided by persons who are not agents.”

 Norris v. Cox family case

 an emancipated child is no longer under its parent's control. Nor can it be
said that the Cox children were acting for their mother and father by simply
living on the disputed property. There were no obligations imposed on the
children. The Coxes merely allowed their children to live on land which they
claimed.”
 子女在别人 property 上 living 不能构成代理
 emancipated child 不受控制
 not acting for parents

hornbook 内容
The Second Restatement defines agency as the “fiduciary relation which results from the
manifestation of consent by one person to another that the other shall act on his behalf
and subject to his control, and consent by the other so to act.”

 (1) consent by the principal and the agent;

 The principal must manifest (or convey) his consent to the agent.
 may be written, oral, or implied from the parties’ conduct.

 (2) action by the agent on behalf of the principal; and

 This requirement is generally understood to mean that the agent must be
acting primarily for the benefit of the principal rather than for the benefit of
the agent or some other party.
 Simply acting in a way that benefits another, in other words, even where there
is control, is insufficient to establish an agency relationship; instead, a court
must believe that the agent was acting primarily for the benefit of the other
person (the principal).
 例如请电工装电表，由于不会期待用户承担电工 negligence 的损失，不期待
fiduciary duty，电工为了自己的劳动费用？，因此这不是 agency relationship

 (3) control by the principal.

 The level of control may be very attenuated with respect to the details.
However, the principal must have ultimate responsibility to control the end
result of his or her agent’s actions; such control may be exercised by
prescribing the agents’ obligations or duties before or after the agent acts, or
both.

Agency vs. the Gratuitous Bailment

 Gorton v. Doty.
 Was Garst the agent of Doty, or was he simply, as the dissent maintained, a
“gratuitous bailee?”
 three elements
 consent, ok
 control,
 This evidence was certainly thin, and the dissent downplayed it as “a
mere precaution upon her part that the car should not be driven by any
one of the young boys—a perfectly natural thing for her to do.”
 on behalf
 But the use of the car appears to have provided no benefit to Doty at all;
at the very least, the arrangement was not primarily for her benefit. As a
result, the court’s agency conclusion seems far off the mark.

 planning implications of Gorton

 Doty could have, of course, refused to lend her car at all, which in hindsight
would have been ideal. If she truly wanted to lend her car, however, perhaps
her best course of action would have been to confirm that her auto insurance
policy was in good standing, and that it covered accidents caused by persons
driving her car with permission.
 By using (abusing?) agency principles to impose liability, the court gives vehicle
owners an incentive to obtain insurance that covers themselves as well as other
permitted drivers.
 我问老师的是说 rule 是正确的，但是 application 是否正确则不一定