The original work on this subject is now out of print, but it is still available on Westlaw. It was replaced by Restatement of the Law Second, Agency, which has been completely superseded and replaced by Restatement of the Law Third, Agency.

Restatement of the Law Second, Agency, is now out of print and has been completely superseded and replaced by Restatement of the Law Third, Agency.  However, it is recommended that the Restatement Second volumes not be immediately discarded, since some courts will continue to cite to them and there may still be occasion to seek them out, even as all will increasingly turn to Agency Third for guidance. The Restatement Second of Agency is still available on both Westlaw and Lexis.

In 2006, the Institute published Volumes 1 and 2 of Restatement of the Law Third, Agency. Volume 1 contains Chapters 1 through 5; Volume 2 contains Chapters 6 through 8. Chapter 1 covers introductory matters, including definitions and terminology. Chapter 2, on principles of attribution, discusses actual authority, apparent authority, respondeat superior, and related doctrines. Chapter 3 deals with the creation and termination of authority and agency relationships, including creating and evidencing actual authority, creating apparent authority, capacity to act as principal or agent, termination of agent’s power, and agents with multiple principals. Chapter 4 explains all aspects of ratification, while Chapter 5 deals with notifications and notice. Chapter 6 discusses contracts and other transactions with third parties, including parties to contracts and rights, liabilities, and defenses. Chapter 7 covers tort liability of agents and principals, while Chapter 8 deals with duties of agent and principal to each other. Excluded from coverage are certain topics concerning the law of employer-employee relationships, which will be dealt with in the Institute’s current Restatement of Employment Law project.

The new Restatement completely replaces the Restatement Second of Agency and addresses the changes that have developed in the field in the half-century since Agency Second was published in 1958. In contrast to the Restatement Second, the new work discusses at length the application of agency doctrines to organizations. It includes many useful illustrations of the application of agency doctrines in organizational contexts, including those defined by statute, and covers applications of agency doctrines to persons who act as representatives of corporations, partnerships, other business organizations, and private not-for-profit entities.

Because agency is a subject that is in substantial part a matter of common law and in other important aspects a matter of statute, Agency Third is a Restatement in the context of relevant statutes. Agency law has retained a structural coherence, despite statutory developments, in part because many statutes make reference to common law or presuppose a background that includes basic common-law doctrines. The relationships between common-law doctrines and the statutory material that shapes the contemporary law of agency are thoughtfully explored in the new work, with numerous references to statutory material.

The new Restatement also deals with some relationships that fall outside the common-law definition of an agency relationship but that are closely linked to agency. One example is a relationship that appears to be one of agency to strangers to the relationship, but is claimed by the parties to be something other than agency. Such appearances of agency are typically governed by the doctrines of apparent authority, ratification, estoppel, and restitution, all of which are dealt with in the Restatement. In addition, the work covers relationships resulting from durable powers of attorney, powers given as security, and irrevocable proxies. Those types of consensual relationships fall outside the common-law definition of an agency relationship but carry the consequence that one person’s acts are ascribed to another. Their function allies them closely to agency as a starting point for legal analysis of the relationship.

In the Restatement tradition, these authoritative volumes combine clear black-letter provisions with extensive explanatory Comments, clarifying Illustrations, and detailed Reporter’s Notes. The Comments thoroughly explain the background, rationale, and applicability of the black-letter provisions, while the Reporter’s Notes document and discuss the sources for the black letter and Comments and provide a convenient basis for further research. The volumes are further enhanced by tables of cases, statutes, parallel tables showing corresponding Restatement Third and Restatement Second section numbers, a table of cross-references to the West Digest System and ALR annotations, and an Index.

Volumes 1 and 2

2 volumes: vol. 1: xxxiv, 411 pp.; vol. 2: xxxii, 583 pp.; 2006, hardbound, Order Code 1R3AGNOTK, $196 -- Order this item

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Reporter and Advisers

Tentative Draft No. 4: Chapter 6. Contracts and Other Transactions with Third Parties; Chapter 5. Notifications and Notice (revisions to §§ 5.03 and 5.04) (for discussion only) xxiii, 237 pp., 2003, Order Code 1R3AGENTD4, $30 -- Order this item

Tentative Draft No. 5: Chapter 7. Torts – Liability of Agent and Principal xix, 187 pp., 2004, Order Code 1R3AGENTD5, $25 -- Order this item

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