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Abstract
There are two ways of getting a job done. The person who wants it done can do it himself by his own efforts, management and hired help; or he can bargain with someone else for the desired result. When he hires per- sonal services and retains the management of the enterprise he is called a "master," the person hired is called a "servant," and the master is liable for what the servant does in the master's behalf. But when one bargains for a given result he does not then become a master, the person bargained with is called an independent contractor, and he does not act in behalf of the employer.' The well known doctrine of Respondeat Superior does not apply in this latter situation.
Let us notice in some detail the factual differences between these two methods of getting things done, and then let us compare the liability of one who employs a servant with the liability of one whc bargains with an independent contractor.
There is a definite and factual difference between the behavior (i.e., the acts and efforts) of a person, and the results which he attains by his behavior. There is a corresponding difference between hiring the behavior of a person and buying the results of his endeavor. For instance, the behavior of a man in building a carriage is something different from the carriage he produces. There is nothing astute in drawing a distinction between the hiring of services to be used in building a carriage, and buying a carriage-the product of services.
In some transactions it is not easy to make out whether services have been hired or the result of services has been bought. The result aimed at and bargained for with an independent contractor is not always a tangible thing, as it was in the carriage illustration; it may be something that has no tangible form.
Recommended Citation
Merton Ferson,
Liability of Employers for Misrepresentations Made by Independent Contractors,
3 Vanderbilt Law Review
1
(1949)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol3/iss1/1