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Practice sets > Agency > Flashcards

Agency Flashcards

1
Q

What is needed to create principal-agency relationship

A

consent and control

*principal & agent that agent will act for principal’s benefit and is subject to principal’s control

Writing/consideration not needed

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2
Q

Factors to look at control

A

level of skill required
who supplies the instrumentalities used
duration of relationship
work is part of principal’s regular business

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3
Q

Sub agents

A

agent gets agent of their own, principal liable for conduct of sub agent if consents and controls sub agent directly

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4
Q

Borrowed Agent

A

principal borrows an agent from another principal only liable for conduct if consent and contol

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5
Q

Why does it matter if someone is an agent

A

principal liable to 3rd party in tort and contact for conduct of agent

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6
Q

Independent Contractors

A

principal not liable for torts b/c no control unless

  1. non delegable duty- inherently dangerous activity
  2. Estoppel- reliance by 3rd party principal liable if believe they are an agent
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7
Q

Termination of agency

A

principal manifests to agent dissent to discontinue the relationship

anytime

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8
Q

Express Actual Authority

A

agent is expressly given authority to act for principal

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9
Q

Express Actual Authority Termination

A

act of principal or agent

death or incapacity of principal unless DPOA b/c survives death

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10
Q

Implied Express Authority

A

principal’s conduct led agent to believe it has authority

*custom, past course of conduct, necessity or an emergency circumstance

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11
Q

Implied Actual Authority Termination

A

after reasonable time

change in circumstance (item destroyed)

agent acquires an adverse interest

either party decides it ends

death, incapacity, bankruptcy unless power is irrevocable

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12
Q

Apparent Authority

A

person dealing with agent must do so reasonable belief in agent’s authority and belief must be b/c act or neglect on principal

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13
Q

Apparent Authority Termination

A

notifying 3rd party (sometimes newspaper is enough)

CL if principal dies 3rd party needs notice of death

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14
Q

Inherent Agency Power

A

eliminated

agent violates orders but does so in principal’s interests and is trusted and controlled by principal

done in course of business

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15
Q

Ratification

A

agent doesn’t have authority to enter transaction and principal can ratify acts of agent and become liable by expressly or impliedly affirming the benefit of it so long as he knew the material facts and had the capacity to ratify it

“all or nothing” Can’t accept just 1 part

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16
Q

2 views of ratification for undisclosed

A

2nd Restatement of Agency- undisclosed principal may not ratify its agents acts (3rd party doesn’t know)

3rd Restatement Agency- undisclosed principal may ratify its agents acts

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17
Q

Disclosed Principal Ratification

A

3rd party knows principal agent isn’t liable to 3rd party if agent had authority to enter K but if no authority liable to 3rd party & principal

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18
Q

Undisclosed Principal liability

A

agent liable no matter what

principal liable if agent had authority to enter K

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19
Q

unindeitfied prinicpal

A

3rd party knows principal exists but just doesn’t know who principal is

agent & principal liable

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20
Q

indemfication

A

agent acts beyond his authority principal can sue agent

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21
Q

Vicarious liability

A

employer liable in tort if agent or employee (SMI)

acting scope of employment

made a minor deviation

committed an intentional tort if & only if principal’s benefit, b/c authorized by principal, arose naturally due to nature of employment

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22
Q

Scope of Employment Factors

A

time, place, purpose of act

if act is common of servants

criminal

employer has reason to expect act to be done

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23
Q

detour vv frolic

A

detoru- minor deviation

frolic- major deviation

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24
Q

if 3rd party releases agent

A

principal also released

25
Q

direct liability of principal

A

neglgience in hiring, firing or supervising

26
Q

duties owed by agent

A

duty of care

duty of loyalty- not engage in self dealing, taking opportunity from principal, making profit without disclosure

duty to obey instructions

27
Q

Partnership Definition

A

association of two or more persons to carry on as co-owners of business for profit whether or not intended to form partnership

28
Q

Formation of partnership

A

no formalities like writing or contributions

29
Q

coownership in partnerhship

A

more then joint ownership

evidenced by control sharing of profits and losses

30
Q

profit sharing presumption

A

person is partner in businesjs unless profts received in payment of

  1. debt
  2. wages of an employee
  3. rent
  4. annuity to widow
  5. interest on loan
    1. consideration for sale of goodwill of business
31
Q

Indications of partnership

A

profit sharing

contributing capital

how title to property

mutual agency/joint liability

partnerhsip agreement

filing certificate of buisness

common interest in capital

32
Q

Rights + Duties of Parternship

A

= rights to co-manage ordinary affairs even if profits aren’t =

losses + profits = unless specified otherwise

no right to salary for running partnership

every partner has ability to bind partnership (agency relationship)

right to be reimbursed if on course of activities of partnerhsip

33
Q

Voting

A

affirmative voting of all partners needed for outside matters like admitting new member, selling land, amendment

majority vote needed for ordinary matters

34
Q

Partnership by Estoppel

A

liable to 3rd parties who rely on partnership even if never formed

35
Q

General Partnership Liability

A

jointly &severally liable for all debts incurred by partnership & liability arising from wrong acts negligence

36
Q

Incoming Partner

A

not liable for prior debts but anything they pay can be used to satify past debt

37
Q

outgoing partner

A

personally liable unless released by creditors

retain liability until notice of disaccositon given to creditors

38
Q

Procedure for collecting agianst partnership

A

obtain jusgement against partnerhsip or/and partner

first collect partnerhsip assets then partner individually

39
Q

UPA Uniform Partnership Act

A

judgement against partnership doesn’t allow creditor to collect from partner must have judgement against both

40
Q

Fiduviary Duties of partners

A

Act honestly & in good faith

Duty of Loyalty

Duty to account

Duty of care

41
Q

Duty of Loyalty

A

not take away opportunties from partnership for personal advantage

compete w/ partnerhsip

selfdealing

42
Q

Duty to Account

A

must account for any profit and hold any profit as a trustee for partnership

43
Q

Duty of Care

A

partners must act w/ ordianry care

44
Q

Ways to Dissolve partnerhsip

A

death-automatic

end of definite term or completion of undertaking

partner’s express will (withdrawl)

expulsion

bankruptcy

illegality

cour decree

45
Q

Notice of dissolution

A

prior creditors-personal notice

others who knew of partnership- newspaper notice

46
Q

Wrongful Withdrawl

A

partners can choose not to wind up & buy share of partner

Can’t participate in winding up

“6 month notice but only gave 2”

47
Q

Rightful Withdrawl

A

Partnership at will

partner can participate in winding up but no control

not liable for damages to other partners

“i quit”

48
Q

Steps to dissovle

A
  1. disassocaition- dissolve
  2. winding up
    1. termination
49
Q

Winding up

A

occurs after dissolution

assets liquidated

creditors paid

all partners liable for any liabilties

50
Q

Distribution of partnerhsip assets after dissolution

A

TLCP

3rd party creditors get what they are owed

partners paid back for their loans

partners paid bacl for contributions

partners paid any profits

51
Q

Termination

A

True end of partnership

52
Q

Use of partnership property

A

only use for partnerhship use not individual

can’t transfer as indiviudal must do in name of partnership

53
Q

Partnership property determination

A

proeprty acquired w. partnership funds

use and upkeep

agreement

title

54
Q

indiivudal property

A

share of profits

management rights

55
Q

Property creditor has access to

A

creditor of partner can acqurie their interest in partnership (profits paid only) no voting rights by obtainign judgment or partner assigns them their interest

56
Q

creditor seeking dissolution

A

only at will partnerhsip or if particular term or undertaking but must be complete

57
Q

LLP

A

formation- must register w/ state by filing statement of qualification

liability- no partner personally liable for obligations of partnership but are for indiivudal torts

anything that happend before LLP treated GP meaning jointly and severally liable

58
Q

LP

A

Formation- file certificate w/ state & pay fee, include names of all general partners if none named not created

liability- limited partners- limited liability; general partners- liable for all obligations they control and mange

59
Q

LP Rights

A

Right to take part in control- spilt if limited partners can mange some say if they do forfeit status

Right ot obtain records- limited aprtners can obtain records from genral partner supon reasonable demand if info is related to bsuinss and financial condition

Right to pursue a derivative claim- lmited partners can pursue deritive claim but must have standing to show claim successful

Limited aprtners have same duties as genral partners (Care loyaloty, good faith, honesty)

Practice sets (10 decks)

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