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In common law[edit]

The concept of respondeat superior has its roots in ancient Rome.[4] At the time, the concept
applied to slaves, as that was the meaning of what has been translated as servants, and
applied where the slave could not pay himself for the act.[5] It was later expanded to apply to
not only slaves, but also to the animals and family members of the master of a family.[6]
In 1698 the doctrine was mentioned in dicta by Lord Holt in the English case of Jones v.
Hart, 2 Salk 441, 90 Eng. Rep. (K.B. 1698).[6] In the US, it was discussed in the case
of Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 508 (1838), in which a boy climbed on a
wagon driven by defendant's servant, who drove his horses faster, causing the boy to be
thrown and injured.[6] The judge ruled that the master was not responsible under respondeat
superior, because the servant had acted in a way in driving the horses that the master had
not assented to, and therefore it was not within the scope of his employment.[6]
American Justice Oliver Wendell Holmes Jr. opined in 1891 that "It is hard to explain why a
master is liable to the extent he is for the negligent acts of one who, at the time, really is his
servant, acting within the general scope of his employment. Probably master and servant are
'feigned to be all one person' by a fiction ..."[5] Justice Holmes was of the view that the
doctrine was in opposition to common sense.[6] In 1916, British attorney Thomas Baty wrote
that the doctrine, which he called a "deep-pocket theory," was "derived from an inconsiderate
use of precedents and a blind reliance on the slightest word of an eminent judge, and from
the mistaken notion that his flights of imagination ... were actual decided cases..."[6]
When applied to physical torts, an employer-employee relationship must be established
(meaning that no vicarious liability is established for work performed as an independent
contractor) and the act must be committed within the scope of employment (i.e., substantially
within time and geographical limits, job description and at least with partial intent to further
employer's business).
Historically, this doctrine was applied in master-servant and employer-employee
relationships. When an employee or a servant commits a civil wrong against a third party, the
employer or master could be liable for the acts of the servant or employee when those acts
are committed within the scope of the relationship. The third party could proceed against the
servant and master, that is, the employee and employer. The action against the employee
would be based on his conduct. The action against the employer is based on the theory
of vicarious liability, wherein a party can be held liable for the acts of a different party.
The employer-employee relationship is the most common area respondeat superior is
applied, but the doctrine is also used in the agency relationship. In this relationship, the
principal becomes liable for the actions of the agent even if the principal did not commit the
act. There are three considerations generally:

1. Was the act committed within the time and space limits of the agency?
2. Was the offense incidental to, or of the same general nature as, the responsibilities
the agent is authorized to perform?
3. Was the agent motivated to any degree to benefit the principal by committing the
act?
The degree to which these are answered in the affirmative dictates the degree to which the
doctrine can be applied.
Common law distinguishes between civil and criminal forms of respondeat superior.

In US securities law[edit]
In U.S. securities law cases in which respondeat superior has been considered, where the
company was not a knowing participant in the employee's fraud, the results have been
mixed.[7] In O'Brien v. Dean Witter Reynolds (D. Ariz 1984), the court, emphasizing the
requirement of knowing participation, stated that an employee's knowledge could not be
imputed to the employer.[7] The court in Dakis v. Chapman (D. Cal. 1983) stressed the
concept of intentional participation; liability would not attach to a firm that was merely a
"conduit" for the employee's securities violations.[7] In Parnes v. Heinold Commodities (N.D.
Ill. 1983), the court described the use of respondeat superior as "bizarre," noting that the firm
itself had been victimized by its unscrupulous employee.[7]
As to claims under the Securities Exchange Act, the Act's legislative history, under which the
House of Representatives version was adopted, indicates that respondeat superior is not
applicable, because liability is only allowed if there was participation in the employee's
fraud.[7] Furthermore, courts such as the Southern District of New York have held
that respondeat superior liability is not available under Section 10(b) of the Securities
Exchange Act.[8][9][10] Similarly, Thomas Hazen writes in Treatise on the Law of Securities
Regulation (2005) that "Respondeat superior ... do[es] not apply to sanctions for illegal
trading on inside information.[11]
As Robert Anello wrote in Forbes in 2014, "Analysis of the corporate mens rea is, by
definition, contrived and one with which federal courts have struggled."[12] In the US, there is
a three-way circuit split, as the Fifth Circuit and the Eleventh Circuit apply respondeat
superior, the Second Circuit and the Seventh Circuit and the Ninth Circuit apply instead a
concept of "collective knowledge", and the Sixth Circuit rejects the respondeat superior and
collective knowledge approaches and applies its own -- third -- approach because in its view
neither the respondeat superior approach nor the collective knowledge approach is ideal or
effectuates the purpose of securities fraud laws.[12][13]