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agency Flashcards

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1
Q

What is an agency relationship?
What capacity is needed?
Does it require a written agreement?
Subject to SOF?

A
  • fiduciary relationship by consent
  • principal needs contractual capacity, not agent
  • doesn’t necessitate written agreement
  • may be subjected to sof
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2
Q

actual express authority
Incl:
- where to find?
- medium of agreement
- how can org grant

A
  • explicitly granted
  • in four corners of agency agreement
  • written or oral
  • also granted through decision-making process of org
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3
Q

implied authority

A
  • agent reasonably believes they have auth
  • b/c of principal’s actions
    can be
  • incidental to express authority
  • implied from acquiescence
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4
Q

How is authority terminated (5)

A
  1. Event/time
  2. change of circs
  3. breach of fiduciary duties
  4. unilateral act
  5. death or incapacity
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5
Q

exception to apparent auth in partnership ocob

A

actions by partner in ordinary course of business bind partnership UNLESS
1. partner lacks auth
2. third party knew or was notified

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6
Q

apparent authority

A
  • partnership portrays partner as having auth
  • others led to reasonably believe auth exists
    ex: actions by partner in ordinary course of business bind partnership
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7
Q

Are mere representations of agent sufficient to create apparent auth

A

No

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8
Q

What kind of authority can power of position create

A
  • agents title or position can establish
  • apparent and actual implied authority
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9
Q

lingering authority

A
  • agent whose actual authority has ended retains apparent authority
  • maintained with all third parties p knows a interacted with
  • until parties receive actual or constructive notice of termination
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10
Q

Authority/agency ratification + can it modify the rights of intervening parties

A
  • creates relationship
  • individual acting as agent w/o actual authority
  • actions subsequently validated by the principal
  • cannot modify the rights of intervening parties
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11
Q

principal requirements for ratification

A
  1. aware of all material facts
  2. accept the transaction
  3. capacity to accept transaction
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12
Q

When is principal liable for agency contracts?
When is agent also liable?

A
  • principal, not agent, liable if actual auth, apparent auth, or ratification
  • if principal undisclosed or partially disclosed, agent also liable
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13
Q

agent’s fiduciary duties

A
  • duty of (reasonable) care (in carrying out agency)
  • duty of loyalty (accounting for profits, acting solely for p’s benefit, avoiding adverse deals, refraining from competing, not using principal’s property incl. confidential info)
  • duty of obedience to all reasonable instructions from principal
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14
Q

principal’s duties to agent

A
  • not fiduciary
  • indemnify agent for expenses & losses in service of p
  • compensate agent for services
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15
Q

tort liability (agency)
- scope
- j&s l?
- intentional torts?
- detours & frolics?

A
  • w/in scope of employment
  • joint & several liability
  • generally not liable for intentional torts unless NIA (necessary for employer’s goals, inherent to job, authorized by employer)
  • may be liable for torts committed during detours but not frolics
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16
Q

diff b/w ind contractor and employee

A

factor:
- control over means and results
- skill required
- use of tools and facilities
- duration of employment
- compensation basis
- presence of distinct business

17
Q

partnership formation

A
  • 2+ persons associate to conduct business as co-owners
  • for profit
  • sharing of profits key indicator of partnership UNLESS payments of debt, wages, rent, or loan interest
  • written agreement not mandatory but may be required by statute of frauds
18
Q

Formal partnership agreement
- necessity for formation?
- what does it allow?
- format?

A
  • not necessary for formation of partnership
  • allows partners to adjust most statutory provisions
  • can be written, oral, or implied
19
Q

partnership voting and management rights
- what % to each p?
- % required for votes in normal course of p?
- outside normal course?
- p right to salary or compensation beyond profit shares?

A
  • all partners equal in management and voting rights
  • normal course of partnership -> majority consent
  • outside normal curse -> unanimous consent
  • partners -> no right to salary or compensation beyond profit shares
20
Q

partnership financial rights (profits/losses)

A
  • profits shared equally (standard rule, unless modified)
  • losses apportioned in the same manner as profits (losses follow profits)
21
Q

limited partnership

A
  • 1+ gp
  • 1+ lp
  • gps personally liable for obligations
  • lps typically no liability beyond agreed-upon contributions
  • requires certificate of lp w/ ss for valid formation
22
Q

limited liability partnership
- what is (how created)
- benefit
- personal liability

A
  • gp + filed statement of qualification w/ ss
  • benefit: partners not personally liable for llp’s obligations
  • partners remain personally liable for personal wrongful actions
23
Q

general partnership
- what
- intent?
- formalities?
- j&s l?
- tortious liability?
- indemnification?

A
  • 2+ persons who agree to jointly run a business for profit
  • no intent requirement (i.e., don’t need to intend to form partnership)
  • no formalities required
  • joint & several liability for all obligations of partnership, whether contract or tort
  • partners liable for tortious acts by partner or employee in ocob or with authority
  • one partner who pays or satisfies whole partnership obligation entitled to indemnification or contribution from other partners
24
Q

partner (gp)

A
  • agree with at least one other person to co-own a business for profit
  • person who receives share of profits presumed to be partner,
  • UNLESS profits received as rent or when gross returns (not gross profits) being shared
25
Q

vicarious liability

A
  • partners vicariously liable for
  • tortious acts committed by employee of partnership
  • in ocob or with authority
26
Q

partnership liability in contract
- which contracts
- entered into by whom
- real estate binding on 3ps?
- others binding on 3ps?

A
  • liable for contracts entered into on its behalf
  • by partners with actual or apparent authority
  • real estate treated diff
  • real estate transfers binding on 3ps if (1) statement of partnership auth filed with ss & (2) recorded
  • all other transactions binding on partnership but not 3ps
27
Q

fiduciary duties of partners

A
  • duty of loyalty to account for benefits derived in conducting partnership business or using partnership property
  • refrain from dealing adversely with partnership
  • refrain from competing with partnership
  • duty of care to refrain from gross negligence or recklessness, intentional misconduct, or knowing violation of law
  • duty of disclosure
28
Q

partnership property
- when presumed
- is partner co-owner of partnership property?

A
  • presumed partnership property if purchased with partnership funds
  • partner is not co-owner of partnership property and has no interest that can be transferred
29
Q

When is property presumed the partner’s (ie, not partnership) property

A

presumed partner’s property if
1. acquired in her name
2. without using partnership funds &
3. no indication she was acting for partnership

30
Q

partnership ownership interest
- transfer management rights?
- transfer financial rights?
- transfer makes transferee partner?

A
  • partner cannot unilaterally transfer management rights
  • partner may unilaterally transfer financial rights
  • transfer of financial rights does not make transferee partner
31
Q

dissociation, 5 ways it can happen

A
  • occurs when partner withdraws from partnership via:
    1. notice to partnership
    2. expulsion
    3. death,
    4. bankruptcy, or
    5. due to an agreed upon event
32
Q

wrongful dissociation

A
  • if withdrawal is in breach of express-term of partnership agreement
  • only if for term; cannot wrongfully dissociate if partnership at will
  • liable for damages
33
Q

wrongful dissociation outcome

A
  • partnership assets will be liquidated or
  • partnership can continue and other partners can buyout dissociating partner’s interest
34
Q

dissolution & winding up

A
  • only in limited circs
  • at-will partnership: any partner who dissociates by express will may compel dissolution
  • term partnership: one partnership dissociates wrongfully or due to death or bankruptcy, dissolution only occurs if one-half of remaining partners agree to wind up
35
Q

priority of distribution on dissolution

A
  1. all creditors (outside & inside, i.e., including partners)
  2. repay all capital contributions paid in by partners
  3. any profits or losses are addressed
36
Q

when can principal be vicariously liable to 3p for torts committed by non-employee agent where agent deals with 3p

A

when actions taken by agent with apparent authority constitute a tort

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