Agency and Partnership

Question 1

LIABILITY OF AGENT

Answer 1

AGENCY & PARTNERSHIP

An agent is personally λ if she TOUTS her activity

• T The agent commits Tortuous conduct, in which case the agent is personally λ for those harmed.
• O The agent acted Outside her authority or she acted w/o any authority giving rise to a c/a for breach of the implied in law warranty of authority.
• U The agent acted on behalf of an Un-named or Undisclosed principal
• T The agent served Two principals w/o full disclosure to each principal and obtaining their informed consent.
• **S **Self-Dealing by the agent w/ the principal’s business opportunities.

Question 2

AGENCY & PARTNERSHIP
Partner’s Rights when Assigning Interest to 3P

Answer 2

Liability for Partnership Obligations

• 3Ps can only assert an interest in Ptr’s interest –> 3P Entitled to @ Dissolution:
  
  • Profits or Surplus
  • Maybe share of proceeds upon dissolution
  • No right to participate in mgmt of P’ship or Interst in any P’ship properties.

Question 3

AGENCY & PARTNERSHIP
Liability of a New Partner for Obligations that Incurred Before Acquiring a P’Ship Interest

Answer 3

Partner Rights in for Partnership

• General Rule: Liability limited for Ptrs who arrive a COA of action arose upon P’ship.
  
  • Ltd to their interest upon arrival.
  • EXCEPTION: If Ptr affirmatively inccurs any oblig. to pay preexisting debts of P’ship.

Question 4

AGENCY & PARTNERSHIP
Can a Partner Maintain an Action a/gst the Partnership on Claim that Arose before Acquiring a Partnership interest?

Answer 4

Partner Rights in for Partnership

• General Rule: Partner may not sue the P’ship –> Only Remedy is Accounting
• EXCEPTION:
  • Fully Completed/Unadjusted Trxns:
    
    • Small # of trxns,
    • Minimial complex accounting to adjust rights
    • COA arose before member of Partnership –> Resut ( Collect jdgmt from Ptrs + P’ship)

NOTE: Liability limited for Ptrs who arrive COA of action arose. Ltd to their interest upon arrival.

Question 5

AGENCY & PARTNERSHIP
Scope of Liability for Partner w/ regardes to Obligations

Answer 5

Partner Obligations in Partnership

• General Rule: Ptr liable for obligations duly incurred in course of P’ship business but also jointly liable on K-obgl’n.

Question 6

AGENCY & PARTNERSHIP
Nature of Partner’s Rights in a Partnership

Answer 6

Partner Rights in for Partnership

• Each Ptr has interst in P’ship
  
  • Interest is personal property that can sold or assigned
• Each Ptr also owns interest as tenant in P’ship w/ all other Ptrs but may possess P’ship property for other than P’ship purposes w/o consent of all other parties
• Each Ptr has right to participate in mgmt of P’ship.

Question 7

AGENCY & PARTNERSHIP
Liability of a Limited Partner to 3rd Parties?

Answer 7

Liability for Partnership Obligations

• Partnership is liable for obligations duly inccurred in the course of the partnership business
• All partners are jointly liable on K-obligations
  • π can sue the partnership or partners individually
  • BUT cannot collect from partner more than amount of interest in partnership if partner not member when ptnship incurred oblg’n

Question 8

AGENCY & PARTNERSHIP
What is the 2 part test to determine if a Principal is liable for the tort of an agent?

Answer 8

Principal-agent relationship exists: (1) Assent, (2) Benefit, (3) Control, and

• Tort committed in the scope of employment.
  
  • Conduct “of the kind” hired to perform?
  • Occurred “on the job?”
    
    • Frolic = new & indpt journey
    • Detour = mere departure from assigned task
  • Intended to benefit P?

Sub-agents = missing A & C usually

Borrowed agents = missing C usually

Question 9

PARTNERSHIP

What happens to a Debts of a Partnership after a Partnership Dissolves?

Answer 9

DISSOLUTION & DEBTS

Generally Rule: all Partners are liable for the debts of the partnership incurred by any Partner in the course of partnership.

RESULT: Once partnership dissolves, a partner may not bind the partnership to a new business. He may only wind up the old business.

EXCEPTION: When the partner does not have NOTICE of the dissolution. –> May continue to bind partnership until he receives notice of the facts requiring dissolution.

Question 10

PARTNERSHIP

What happens to a Partnership when a Partner dies?

Answer 10

Effect of a Partner’s DEath

NY Law: A partnership dissovles on the death of any partner UNLESS the partnership agreeement provides to the contrary.