I. Fiduciary

I. AGENT BREACHING FIDUCIARY DUTY TO PRINCIPAL

Elements to prove:

  1. an agent-principal relationship has been established;
  2. the agent has breached his, her or its fiduciary duty to principal when he, she or it acts:
    1. adversely towards the principal’s interests, and
    2. in bad faith, or
    3. in any manner inconsistent with his, her or its agency to the principal in any part of the transaction, or
    4. when the agent omits to disclose any interest which would naturally influence his conduct in dealing with the subject of the employment

II. AGENT NEGLIGENT IN COLLECTING DEBT

Elements to prove:

  1. agent is required to exercise good faith in that the agent must disclose when the debt has been collected and the amount collected;
  2. with reasonable diligence; and
  3. such skill as is ordinarily possessed by persons of common capacity in collecting debt.

III. AGENT’S LIABILITY FOR PRINCIPAL’S OBLIGATION 

Elements to prove:

An agent will be liable for the principal’s obligation if:

  1. the agency relationship was never disclosed;
  2. the agency relationship was known by the principal, but was never disclosed; and
  3. there is a disclosed principal, but there is clear and explicit evidence that the agent intended to assume such liability personally.

IV. AGENT’S NEGLIGENCE CAUSING HARM TO OTHERS 

Elements to prove:

An agent is liable for harm caused to others when:

  1. the act was an affirmative act;
  2. of negligence or misfeasance; and
  3. where the claimed negligence is nonfeasance, the person injured has a cause of action only against the principal.

V. AGENT’S PERSONAL LIABILITY ON CONTRACT

Elements to prove:

An agent will be personally liable on a contract if:

  1. the agency is disclosed and there is clear and explicit evidence of the agent’s intention to substitute or supercede his personal liability for, or to, that of his principal; and
  2. the agency was not disclosed at the time of the contracting.

VI. BAILMENTS

Elements to prove:

  1. lawful possession, consisting of an actual delivery creating an actual bailment or a constructive delivery creating a constructive bailment; and
  2. a duty to account for the thing as the property of another, however, the type of duty created depends upon the type of bailment created so that
  1. Bailment for mutual benefit: bailor benefits by having the property cared for, and compensation of some type is provided for the bailee, thus, imposing a duty upon the bailee to exercise ordinary care in relation to the article bailed, or
  2. Gratuitous Bailment: the transfer of possession or use of property without compensation, and, therefore, the bailor owes a duty to warn the bailee of any known defects that were not readily discernible.

VII. CARING FOR COLLATERAL OR SECURITY

Elements to prove:

A secured party must act towards the collateral or security that they have possession of with:

  1. due diligence for the preservation of the collateral or security;
  2. with reasonableness, and, if a secured party has possession of collateral, it may
    1. hold as additional security any proceeds received from the collateral;
    2. apply money received from the collateral to reduce the secured obligation;
    3. create a security interest in the collateral; and
  3. with reasonable care where:
  4. in the case of chattel paper or an instrument, care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed;
  5. while standards by which performance of such obligations may be set by the parties, this duty of care may not be disclaimed by agreement; and
  6. reasonable expenses incurred in the custody, preservation, use or operation of the collateral are chargeable to the debtor.

VIII. CHARITABLE ORGANIZATION LIABLE FOR WRONGDOING

Elements to prove are in line with tort liability and negligence.

IX. CONSIGNEE LIABILITY FOR DAMAGED ART

Elements to prove are liability damage caused by the lack of reasonable care.

Check: Uniform Commercial Code, Secured Transactions. Pursuant to Uniform Commercial Code under §9.

X. CO-SURETIES CONTRIBUTING ON DEBT DEFAULT

Elements to prove:

  1. a guarantor;
  2. who has paid more than his or her proportionate share of a common liability;
  3. is entitled to contribution from any guarantors.

XI. ESCROW AGENT IMPROPERLY DISBURSING FUNDS

Elements to prove:

  1. there is an escrow agreement, and
  2. there is a delivery of the property inconsistent with the terms of the agreement.

XII. FAITHLESS SERVANT DOCTRINE

Elements to prove:

  1. an employee’s act;
  2. adversely to his/her employer’s interest;
  3. where the employee’s disloyal activity was related to “the performance of his duties,”
  4. the disloyalty “permeated the employee’s service in its most material and substantial part”; and
  5. for forfeiture to be warranted, or, in the alternative, an employee must be guilty of misconduct and unfaithfulness that substantially violated the contract of service.

XIII. FIDUCIARY BREACHING DUTY

Elements to prove:

  1. a fiduciary relationship;
  2. misconduct, including
  3. situations of self dealing or personal interest conflicts;
  4. the fiduciary injuring or acting contrary to the interests of the person to whom a duty of loyalty is owed; and
  5. damages that were directly caused by the defendant’s misconduct.

XIV. FRAUDULENT CONCEALMENT BY FIDUCIARY

Elements to prove:

  1. defendant owed a fiduciary duty to the plaintiff;
  2. defendant concealed a fact;
  3. the concealment was intentional in order to defraud or mislead the plaintiff;
  4. the plaintiff reasonably relied on the misrepresentation; and
  5. the plaintiff suffered damage as a result of its reliance on the defendant.

XV. OBLIGOR AIDING AGENT DISLOYALTY TO PRINCIPAL

Elements to prove:

  1. a breach by a fiduciary of obligations to another;
  2. that the defendant knowingly induced or participated in the breach, and
    1. a person knowingly participates in a breach of fiduciary duty only when he or she provides “substantial assistance” to the primary violator, that consists of when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur—inaction is insufficient; and
    2. constructive knowledge of the breach of fiduciary duty by another is legally insufficient to impose aiding and abetting liability; and
  3. that plaintiff suffered damage as a result of the breach.

XVI. TEMPORARY RECEIVER APPOINTMENTS

Types and Elements to prove:

A. “NECESSITY” RECEIVER

  1. to appoint a “necessity” receiver you must prove that it has an interest in the property;
  2. notice was provided to the other side;
  3. there is a risk of irreparable loss or waste at the property; and
  4. the appointment of receiver is “necessary” so as to protect plaintiff’s interest.

B. RECEIVER UNDER “RECEIVER CLAUSE”

  1. to appoint a a receiver under the “receiver clause,” you must prove that a mortgage document exists; and
  2. the document contains a clause indicating the mortgage holder is entitled to the appointment of a receiver.

XVII. WAREHOUSEMAN OR CARRIER LIABILITY FOR GOODS

Types and Elements to prove:

A. CARRIER LIABILITY

  1. A common carrier is responsible for any loss or damage while the goods are in his custody. However, a private or contract carrier is not liable for the loss of, or damage to, goods transported, in the absence of negligence by it.

B. WAREHOUSEMAN LIABILITY

  1. A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care.

XVIII. WAREHOUSEMAN OR CARRIER LIEN ON GOODS

Elements to prove:

  1. the goods covered by a bill of lading;
  2. for charges;
  3. subsequent to the date of its receipt of the goods for storage or transportation (including demurrage and terminal charges);
  4. for expenses necessary for preservation of the goods incident to their transportation or reasonably incurred in their sale pursuant to law;
  5. but against a purchaser for value of a negotiable bill of lading a carrier’s lien is limited to charges stated in the bill or the applicable tariffs, or if no charges are stated then to a reasonable charge.

XIX. WAREHOUSEMAN ELEMENTS OF LIEN

Elements to prove:

  1. against the bailor;
  2. on the goods;
  3. covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods; and
  4. for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.

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