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Trusts > Agency and Partnerships > Flashcards

Agency and Partnerships Flashcards

1
Q

Agent & Principle ID

A
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2
Q

Elements of an Agency Relationship

A

(A.B.C.)
A. Assent of both parties to the relationship
b. Agent works for the benefit of principle
c. Agent works subject to control of the principle

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3
Q

Theories of Authority (Must discuss all)

A

Express Actual Authority - P&A go do this (clear + definite)
Implied Actual Authority - P&A do what must be done to meet this goal (based on agent’s reasonable understanding of P’s object.)
Apparent Authority - P&3
- 3rd party reasonably believes agent has authority to act on behalf of P. Agent in powerful position.

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4
Q

Ratification

A

A principal ratify any contract, in part or whole.

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5
Q

Principal- Vicarious Liability

A

A principal can be vicariously liable and directly liable to a 3rd party who is harmed by a tort committed by an agent.

Agent acting within the scope of employment. Frolic v. Detour

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6
Q

Partnership Formation

A

A partnership association of 2 or more persons to carry on a for-profit business as co-owners.

Key Test - Sharing Profits

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7
Q

Partnership duties

A

Duty of care - grossly negligent misconduct/ knowing violation of the law.

Duty of loyalty

  • Usurping partnership
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8
Q

All 3 Forms of Authority

A

Express Actual
- From Agreement/ From partners
Implied Actual
- Scope of duties of the person
Apparent Authority*
- If 3rd party believes that they have the authorization, they will have apparent authority UNLESS:
- informed otherwise before the contract via call/writing.

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9
Q

Liability to Parties

A

Joint and severally liable, go to personal accounts if regular run out.

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10
Q

Partnership Changes and Termination

A

Can end at anytime , usually when a partner disassociates from Partnership. By giving notice.

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11
Q

Winding up order of dealing with debts

A

-Creditos
- Internal loaners
- Partners

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12
Q

LLP

A

Requires paper be filed with the secretary of state

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13
Q

Requirements for K Formation

A

Valid offer, Acceptance, and bargained-for consideration

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14
Q

Irrevocable Offers

A

CL: Option K. Hold open until a specified date, offeree must pay consideration for the open duration.
UCC: Merchant’s Firm Offer: In writing, Merchant says he’ll hold offer open for a period of time. Not exceeding 90 days and is not subject to consideration.

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15
Q

UCC 2207 Battle of the Forms Requirement

A

M. R. O - Maggie Remains Rejecting
An acceptance with changes usually not valid if both parties are non-merchants but in the case where they are not both non-merchnants and one party is a merchant than acceptance with changes is okay UNLESS:

  1. Merchant objected to the changes to begin with
  2. Materially alters terms of contract, ie: limitations on remedy.
  3. Limits acceptance of the terms of the offer.
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16
Q

Consideration

A

bargained for exchange, not including the giftfs, and the pre-existing duty.

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17
Q

Defenses to Formation of K.

A

Mistake - mutual/ unilateral –> reformation
Misrepresentation/ Fraud –> FAWAJ –> recission
Undue Influence –>
Duress
Capacity
unconscionability

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18
Q

SOF attaches to

A

All the following must be in writing:
- marriage
-suretyship
- real estate
- Pays for the land
- takes possession of land
- substantially improves
- UCC 500+
- 1 year +

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19
Q

SOF exceptions

A
  • Full performance rendered
  • Substantial partial performance
  • Promissory Estoppel (RAD)
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20
Q

Parol Evidence Rule

A

Extrinsic evidence of oral or written nature may be admitted to clarify the terms of the agreement so long as it does not contradict the terms already present.

Courts will look to:
1. K. fully integrated? Merger Clause?
- If yes, then No PER
If no, then PER

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21
Q

Performance of K.

A

P wants Capre Everytime
- Promise
- Condition Precedent
- Warranty Disclaimers
- Express statements
- Discharge

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22
Q

Discharge

A

Impractability - event occurs making performance extremely difficult.
- Unforseeable event occurs
- The nonocurrence of the event was assumed at contract
- discharging party not at fault
Impossibility
- Event occurs making performance impossible.
Frustration of purpose
- Unexpected event arrises destroying primary purpose for entering into the k. –> recission.

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23
Q

Warranties

A

Express
Implied Warranty of Merchantability
Implied Warranty of fitness for a particular purpose.

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24
Q

Prop 8 Statement

A

Proposition 8 (henceforth Prop 8) of the California Constitution allows for the admission of any relevant evidence in all criminal cases. However Prop 8 under The California EVidnce Code (CEC) 352, makes a balancing exception such that relevant evidence may be inadmissible if: (1) the probative value of the evidence is substantially outweighed by the risk of unfair prejudice; (2) confusing of issue; (3) and misleading the jury

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25
Q

Logical Relevance

A

the admission of this piece of evidence allows for the fact to be more probable and is consequential in determining the action.

26
Q

Legal Relevance

A

The probative value is substantially outweighed by the risk of unfair prejudice.

27
Q

Specific Bad Acts

A

Admitted to show M.I.M.I.C
- Motive
- Intent
- Absence of Mistake
- Identiy
- Common Plan

28
Q

Authentication methods

A

All tangible evidence must be reasonably authenticated to prove with a sufficient certainty that it is what it claims to be
- Personal Knowledge
- Documentary Knowledge
- ARCHIVAL
- Self authenticating

29
Q

Witnesses

A

All you need is personal knowledge to testify

Lay opinion
- about your perception
to help clarify/understand a piece of evidence or testimony.

Expert Witness
- Expertise scientific, technical, or other specialized knowledge
- help understand fact in isssue.

30
Q

Witness Impeachment

A
  • Bias
  • ulterior motive
  • Lying - Credibility
  • Prior inconsistent Statement
  • Sensory competence

*Once impeached the ops can introduce rehabilitative evidnece.

31
Q

Hearsay

A

Out of court statement made to offer the truth of the matter asserted.

32
Q

Non-hearsay

A

Prior statements
Party Opponent and Vicarious Liability (Statements made in the scope of the employment.
Adoptive Admission

33
Q

Hearsay Exceptions when Declarant Unavailable

A

Dying declaration
Statement against interest

34
Q

Hearsay Exceptions when declarant available

A

Present SENSE impression
excited Utterence
business records
public reccords
medical/diagnosis
Recorded recollections

35
Q

Negligence

A

To prove a prima facie case for negligence you must show the breach, duty, causation, and harm.

36
Q

Duty

A

A duty is owed to all reasonably foreseeable people that may be harmed by the defendant’s failure to meet the reasonable standard of care. Under the majority view (Cardozo), a defendant is only
liable to plaintiffs within the zone of foreseeable harm. Under the minority view (Andrews), a
defendant owes a duty to everyone harmed.

37
Q

Standard of Care

A

The standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person
under the circumstances as measured by an objective standard.

38
Q

Breach

A

Defendant will be in breach of his duty to plaintiff if he fails to meet the applicable standard of
care

39
Q

Negligence Per Se

A

– Alternative Duty/Breach Analysis
When a statute imposes upon any person a specific duty for the benefit or protection of others,
a violation of the statute will constitute negligence per se.
- 1) Class of person:
In order for the statute to apply, the plaintiff must be in the class of people meant to be
protected by the statute.
2) Type of Harm:
The plaintiff must also suffer the type of harm the statute intended to protect against.
3) Proximate Cause:
If the statute applies, the defendant will be liable to the plaintiff if his violation of the
statute proximately caused harm to the plaintiff.

40
Q

Cause in Fact/Actual Cause
.

A

To prove actual causation, plaintiff must show that but for defendant’s act, plaintiff’s injury
would not have occurred. If there are multiple causes, defendant will be a cause in fact if
he was a substantial cause of plaintiff’s injury

Must also address any intervening causes.

41
Q

Proximate Cause

A

The plaintiff must show that her injuries were the foreseeable result of defendant’s conduct.

42
Q

Defenses

A

Asssumption of the Risk
Contributory Negligence

43
Q

Trespass to land

A

Trespass to land requires the physical invasion of another’s land and intent to enter the land
or cause physical invasion (transferred intent applies).

Defenses
- Necessity

44
Q

Conversion

A

Conversion requires serious interference with plaintiff’s possession of her chattel, intent to
perform the act that interferes with the possession (transferred intent does not apply),
causation, and damages. The serious interference with plaintiff’s personal property results
in damages for the full value of property.

45
Q

Trespass to chattels (tangible personal property)

A

Trespass to chattels is an interference with the plaintiff’s possession of her chattel, intent to
perform the act that interferes with the possession (transferred intent applies), causation,
and damages. Damages are limited to compensation for the loss in value or cost of repair of the property.

46
Q

Battery

A

Battery requires harmful or offensive contact (objective standard) with the plaintiff’s person
(or anything connected to it), intent by the defendant to cause the touching (transferred intent applies), and causation.

47
Q

Assault

A

Assault requires an act/threat (mere words not enough) placing the plaintiff in in reasonable
apprehension of imminent harmful or offensive contact with his person, intent by defendant
to place defendant in apprehension (transferred intent applies), and causation.

48
Q

IIED

A

IIED requires extreme and outrageous conduct by the defendant causing severe emotional
distress to plaintiff and intent (transferred intent does not apply) by the defendant to cause
distress.

Liability to third parties
* Defendant can be liable if he distresses a member of victim’s immediate family

  • Defendant can be liable if he distresses a bystander (not family) if the distress
    results in bodily injury to the bystander.
49
Q

False imprisonment

A

False Imprisonment is the intentional confinement/restraint of defendant (methods of
confinement include physical barriers or force, threats, invalid use of legal authority, duress)
for any amount of time. T
here must be no reasonable means of safe escape and actual
damages are unnecessary if P was aware of confinement.
1) Shopkeeper’s Privilege (Defense)
If a shopkeeper reasonably suspects plaintiff of stealing, he can detain the plaintiff for a
reasonable amount of time in a reasonable manner

50
Q

False Light

A

To maintain an action for false light, plaintiff must prove that defendant published facts about
plaintiff or attributed views/actions to plaintiff that place him in a false light and are highly
offensive to a reasonable person.

51
Q

Defamation (D.C. P.R)

A

A plaintiff may bring an action for defamation if the defendant’s defamatory language is of or
concerning the plaintiff, is published to a third party who understands its defamatory nature, and damages the plaintiff’s reputation.
I. Defamatorry language
II. concerning the plaintiff
III. published to a 3rd party that knows about the defamatory nature
Iv. Reputational harm

52
Q

Intrusion upon seclusion

A

An intrusion upon seclusion is defendant’s act of intrusion into plaintiff’s private affairs that are
objectionable to a reasonable person. Note that no publication is required.

53
Q

Misappropriation

A

Misappropriation is the unauthorized use of P’s name, likeness, or identity for D’s advantage
(commercial or otherwise). Plaintiff must prove lack of consent and injury.

54
Q

Public Disclosure of Private Facts

A

The public disclosure of private facts is actionable if the publication would be highly offensive to
a reasonable person, and is not of legitimate concern to the public.

55
Q

Defenses to Defamation

A
  • Truth
  • consent
  • absolute pivilege
  • qualified privilege - important public use
56
Q

Negligent Infliction of Emotional Distress

A
  • P in the zone of danger or threatened physical impact;
  • threat of impact caused emotional distress.

Bystander may recover if:
1. closely related
2. At the scene of injury
3. observed it

57
Q

Strict Liability Elements

A
  1. Product was defective
  2. Defect existed when it left defendants control
  3. The Defect caused the plaintiff’s injury when used in a forseeable way
58
Q

Types of Defect

A

Manufacturing
- deviated from the intended design
- does not conform to the manufacturer’s own design
Failure to warn - obvious foreseeable risk
Design - RUT AND CET
Consumer Expectation TEST - LESS SAFE THAN ORDINARY CONSUMER WOULD EXPECT.
RISK UTILITY TEST - RISK OUTWEIGH BENEFITS

59
Q

Reverse Pereira

A

The reverse Pereira formula is applied when the main reason for the increase in the value of the CP business is due to the skills, efforts, and talents of the managing spouse. The community is awarded the return on investment, at a reasonable rate of return, and the remainder is awarded to the spouse who worked in the business.

The community is entitled to the value of the CP business at separation plus the value of the business at separation multiplied by a fair rate of return per year.

THe formula for calculating the CP portion is: CP = Value of the CP Business at the Time of Separation + (Value of the Business at the Time of Separation × Fair Rate of Return × Years of Separation).

60
Q

Reverse Van Camp

A

If the main reason for the increase in the value of the business can be attributed to the asset itself or to the nature of the economy or business, then the Reverse Van Camp formula would be applied. Under this formula, the SP portion would equal the reasonable value of services provided during separation minus SP expenses paid.

Trusts (6 decks)

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