Unfortunately, the Restatements of Agency are not available as open source documents. In this section you will find links to HeinOnline versions of the Restatement of Agency (3rd) and the Restatement of Agency (2d). Because I cannot edit materials on HeinOnline these links are to the complete Restatements, which will be much more than you need. I will make an effort to help identify the relevant sections of interest to us during the course of the semester.

Although in class I will emphasize the use of the Restatement of Agency (3rd), when you read the cases you will inevitably notice that judges and commentators will often refer to the Second Restatement. This is not because the Second Restatement is somehow “better” than the Third. The Second has just been around longer. In any event, there are a number of substantive changes between the Second and the Third, so it is worth being familiar with Third and how it differs from the previous Restatement.

Stockholders do not normally have fiduciary duties with respect to other stockholders. This principle makes sense for a number of reasons. Stockholders with small stakes have no ability to influence the board of directors and therefore should be free from restrictions in their dealings with other stockholders.

However, this principle is subject to an exception. When stockholders can, through their ownership position influence and control the direction of the corporation, then those stockholders have fiduciary obligations with respect to minority stockholders.

Often the question of who is an agent is contentious. This chapter focuses on the sources of agency, including actual and apparent agency. In addition to the sources of agency is the question of the limits of an agent's authority. It is important to recognize that although there are different sources of authority of agents, that the source of an agent's authority does not matter. In the end, regardless of the source, once a person is empowered with authority, a court will consider that person an agent.

This section examines the role of agency in the franchise form. The franchise business is a common form of business organization. It may be a surprise to learn, but with respect to the franchisee/franchisor, agency plays a critically important role. Indeed, lawyers whose practice involves franchise businesses often become experts in agency law.

This section also spends time on the difference between employees and independent contractors. As you will see, employees are obviously agents. But a more common question relates to independent contractors. Are they agents? And, if so, to what extent can they be considered agents?

A principal may give an appearance of agency relationship by, for example, furnishing his or her firm's call cards, or an email address to the purported agent. Or, more often, the principal may simply stand by and do nothing as an agent purports to act on behalf of the principal. In such cases, rather than permit the principal to disavow the agency ex post, the existence of an agency may be presumed, and the principal may be bound by the acts of the agent performed on the principal's behalf. This agency by estoppel creates incentives for the principal to monitor the actions of purported agents.

Agents stand in fiduciary relation to their principals. As such, agents have fiduciary obligations to the principal. The Restatement outlines a s series of fiduciary obligations that an agent has with respect to the principal. The most important of these are the duty of care and the duty of loyalty. The fiduciary obligations of agents with respect to principals can be understood as an analogue to fiduciary obligations of corporate directors in the the corporate law context.

So far, it's been all about what obligations agents owe to their principals. Do principals owe any obligations to their agents?