Agency

Question 1

When is an agency relationship created?

Answer 1

When a Principal manifests an intent for an agent to work on their behalf and their is mutual agreement

Question 2

when is the principal bound by the acts of the agent?

Answer 2

the principal is bound by the acts of the agent when the agent acts with actual or apparent authority

Question 3

what is actual authority?

Answer 3

actual authority is the authority R believes she has based on their dealings with the P.
- actual authority can be express (terms of the contract) or implied (dealings with P)

Question 4

what is apparent authority?

Answer 4

an agent acts with apparent authority when the P “holds out” the agent as having such authority to 3d parties, causing 3d parties to R believe that the agent has such authority

Question 5

when is a partnership formed?

Answer 5

when 2 or more persons get together to carry on as co-owners of a business. no writing required, can be implied from conduct.

Question 6

who is presumed to be a partner?

Answer 6

a person who receives a share of the profits

Question 7

repayment with profits? use of one’s property? both evidence re: partnership?

Answer 7

repayment with profits of the partnership is not evidence that the payee is a partner. allowing the partnership use of one’s property is evidence of a partnership.

Question 8

each partner is an _____ of the partnership for purpose of the partnership’s biz

Answer 8

agent

Question 9

when can a partnership be bound re: acts of a partner?

Answer 9

when the partner acts with actual or apparent authority

Question 10

when does a partner act with actual authority?

Answer 10

when the partner acts with the authority the partner R believes she has based on her dealings iwth the partnership. it can express or implied, thru custom, necessitoy, or prior dealings.

Question 11

when a partner carrying on in the ordinary course of partnership biz, is the partnership bound by the partner’s action? when is the partnership not bound?

Answer 11

yes, the partnership is bound when the partner acts within the ordinary course of partnership business. the partnership will not be bound if the partner did not have actual authority and the 3d party knewthat the partner did not have authority.

Question 12

what is req’d to enter into transactions by a partner within the ordinary course of partnership biz?

Answer 12

MAJ vote of partners

Question 13

what is req’d to enter into transactions outside the ordinary course of partnership biz?

Answer 13

unanimous consent of partners

Question 14

what type of liability attaches to partners for a contract the partnership enters into?

Answer 14

joint and several

Question 15

what type of liability attaches to partners for a contract in which the partner had no authority to act on behalf of the partnership?

Answer 15

no liability

Question 16

what is the test to determine whether a worker is an EE or an independent contractor?

Answer 16

whether the ER had the right to control the worker’s method and manner of work

Question 17

what are the factor’s re: right to control:

Answer 17

1. the characterization by the parties
2. the degree of skill req’d on the job – high = independent k
3. whose tools or facilities are used
4. what the period of employment is (definite and short = more likely 2b an independent k)
5. basis of compensation (time = EE, job = independent k)

Question 18

Employer-EE by estoppel

Answer 18

where a Principal creates the appearance of an ER-EE relationship upon which a 3d party relies, that P will be estopped from denying the relationship and will be liable under the doctrine of respondeat superior

Question 19

how can a principal be liable to a contract entered into with a 3d party?

Answer 19

1. agent had authority to enter the k

2. principal ratifies the agent’s act (by accepting delivery, for example)

Question 20

Are principals liable for the torts of an independent contractor?

Answer 20

generally, no, unless it is a nondelegable duty or inherently dangerous activity (better check that caveat)… could be liable directly for negligent selection or negligent supervision

Question 21

what is disassociation?

Answer 21

a change in the relationship of the partners caused by any partner ceasing to be associated with the carrying on of the biz

Question 22

when is a partner disassociated?

Answer 22

once the partner expresses a wish to become disassociated (in a partnership at will)

Question 23

when does an at-will partnership arise?

Answer 23

when the partnership DN set a specific time frame for a partnership’s duration

Question 24

what happens when a partnership disassociates?

Answer 24

the biz must be wound up

Question 25

can a partner bind the partnership after the partnership has been dissolved?

Answer 25

a partnership will be bound by a partner’s act after dissolution if it was appropriate for winding up partnership business

Question 26

in a partnership, how are losses shared?

Answer 26

absent agreement otherwise, losses are shared same way as profits

Question 27

if one partner pays the entire partnership debt, may she go after the other partners?

Answer 27

yes, for contribution on a pro rata basis

Question 28

when does a partner have apparent authority?

Answer 28

it’s the authority 3d parties R believe the partner has based on the partnership holding the partner out

Question 29

what is a limited partnership?

Answer 29

has at least one general partner and one limited partner

Question 30

how to form a limited partnership?

Answer 30

file with the SOS, must have at least one GP and one LP, must be signed by all GPs

Question 31

explain a partner’s fiduciary duty of loyalty

Answer 31

A partner must account for profits, property, opportunities, or toher benefits derived by th eparnter in conjunction w/ the partnership biz, and must refraim from competing with the partnership.

Question 32

after a partnership is dissasociated, is there a way for it to continue?

Answer 32

after the dissociation of a partnership, if the dissociating partners and the remaining partners unanimous vote to continue partnership business, then the dissolution is retroactively nullified