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CPA REG > Agency Law > Flashcards

Agency Law Flashcards

1
Q

What is Agency Law?

A

Agency Law deals with someone’s ability to bind you to a contract with a third party

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2
Q

What is required for Agency to exist?

A

Both parties must consent to the relationship and intend for an Agency relationship to exist

Agent owes Principal fiduciary duty

Principal doesn’t owe Agent fiduciary duty

A contract is NOT required and an Agency agreement is not based on Contract Law; Exception - If duties cannot be performed within a year; a signed writing is required

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3
Q

What is Actual Authority in an agency?

A

Actual Authority is what is expressly granted or is implied by the duties you expect the Agent to perform and is necessary to carry them out

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4
Q

What is Implied Authority in an agency?

A

When authority is expressly granted; it is implied that the agent has the authority to carry out the duties

Does not include authority to sell or alter a business

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5
Q

What is Apparent (Ostensible) Authority in an agency?

A

Apparent Authority is based on the third party’s perspective - they believe that the Agent has the
authority to enter into a contract based on:

  • Prior dealings with agent
  • Agent’s title leads the third party to believe they can enter into a contract
  • The Principal hires the Agent to carry out duties that normally carry with them the rights to enter into contracts
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6
Q

How is an Agency terminated?

A
  • Both Agent and Principal agree to terminate
  • Principal fires Agent
  • Agent fires Principal
  • Agent breaches their contract by doing something like violating their obligation to act as a fiduciary to Principal
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7
Q

How do you terminate Apparent Authority?

A
  • Let the public know
  • Let the people or entities that the Agent previously interacted with know
  • In cases of death; or Principal is otherwise not competent to contract; ALL authority is revoked
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8
Q

What is an Agency Coupled with an Interest?

A

Agent acquires an ownership interest in the Agency

Can only be terminated early (before the interest expiration date) by the Agent

Unless the Agency has a specific time limit spelled out in a contract; the Agent’s authority is irrevocable
by the Principal

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9
Q

When is an employee an Agent; and when does this make the employer liable?

A

Employees are agents while acting within the scope of their duties.

For employees who injure third parties while acting within the scope of their duties; both Employee and Employer are liable

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10
Q

When are Agents liable for torts (civil wrongs) they commit?

A

Agents are liable for torts (civil wrongs) committed whether they had authority or not

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11
Q

Are Agents who act outside of their authority liable?

A

Agents who act outside of their authority will be liable for the act

Exception - Principal ratifies the contract which relieves Agent of liability

In order to ratify; Principal must know all of the facts and must ratify before third party cancels agreement

If Principal keeps the benefits of the contract; ratification is implied

Contract must be 100% ratified or there is no contract

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12
Q

What is an Agent’s liability when acting for an undisclosed principle?

A
  • Agent liable to third party even if acting within authority
  • Third party can sue both Principal and Agent if Principal becomes disclosed
  • Agent can then sue Principal
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13
Q

What are the requirements for a Power of Attorney (POA)?

A

Must be in writing

Must be signed by person granting the POA

Ends upon death of Principal

General POA - Agent authorized to handle all affairs

Special POA - Agent authorized to handle only specific affairs

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14
Q

What is Agency Law?

A

Agency Law deals with someone’s ability to bind you to a contract with a third party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is required for Agency to exist?

A

Both parties must consent to the relationship and intend for an Agency relationship to exist

Agent owes Principal fiduciary duty

Principal doesn’t owe Agent fiduciary duty

A contract is NOT required and an Agency agreement is not based on Contract Law; Exception - If duties cannot be performed within a year; a signed writing is required

How well did you know this?
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16
Q

What is Actual Authority in an agency?

A

Actual Authority is what is expressly granted or is implied by the duties you expect the Agent to perform and is necessary to carry them out

How well did you know this?
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17
Q

What is Implied Authority in an agency?

A

When authority is expressly granted; it is implied that the agent has the authority to carry out the duties

Does not include authority to sell or alter a business

How well did you know this?
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18
Q

What is Apparent (Ostensible) Authority in an agency?

A

Apparent Authority is based on the third party’s perspective - they believe that the Agent has the
authority to enter into a contract based on:

  • Prior dealings with agent
  • Agent’s title leads the third party to believe they can enter into a contract
  • The Principal hires the Agent to carry out duties that normally carry with them the rights to enter into contracts
How well did you know this?
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19
Q

How is an Agency terminated?

A
  • Both Agent and Principal agree to terminate
  • Principal fires Agent
  • Agent fires Principal
  • Agent breaches their contract by doing something like violating their obligation to act as a fiduciary to Principal
How well did you know this?
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20
Q

How do you terminate Apparent Authority?

A
  • Let the public know
  • Let the people or entities that the Agent previously interacted with know
  • In cases of death; or Principal is otherwise not competent to contract; ALL authority is revoked
How well did you know this?
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21
Q

What is an Agency Coupled with an Interest?

A

Agent acquires an ownership interest in the Agency

Can only be terminated early (before the interest expiration date) by the Agent

Unless the Agency has a specific time limit spelled out in a contract; the Agent’s authority is irrevocable
by the Principal

How well did you know this?
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22
Q

When is an employee an Agent; and when does this make the employer liable?

A

Employees are agents while acting within the scope of their duties.

For employees who injure third parties while acting within the scope of their duties; both Employee and Employer are liable

How well did you know this?
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23
Q

When are Agents liable for torts (civil wrongs) they commit?

A

Agents are liable for torts (civil wrongs) committed whether they had authority or not

How well did you know this?
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24
Q

Are Agents who act outside of their authority liable?

A

Agents who act outside of their authority will be liable for the act

Exception - Principal ratifies the contract which relieves Agent of liability

In order to ratify; Principal must know all of the facts and must ratify before third party cancels agreement

If Principal keeps the benefits of the contract; ratification is implied

Contract must be 100% ratified or there is no contract

How well did you know this?
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25
Q

What is an Agent’s liability when acting for an undisclosed principle?

A
  • Agent liable to third party even if acting within authority
  • Third party can sue both Principal and Agent if Principal becomes disclosed
  • Agent can then sue Principal
How well did you know this?
1
Not at all
2
3
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5
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26
Q

What are the requirements for a Power of Attorney (POA)?

A

Must be in writing

Must be signed by person granting the POA

Ends upon death of Principal

General POA - Agent authorized to handle all affairs

Special POA - Agent authorized to handle only specific affairs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is Agency Law?

A

Agency Law deals with someone’s ability to bind you to a contract with a third party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is required for Agency to exist?

A

Both parties must consent to the relationship and intend for an Agency relationship to exist

Agent owes Principal fiduciary duty

Principal doesn’t owe Agent fiduciary duty

A contract is NOT required and an Agency agreement is not based on Contract Law; Exception - If duties cannot be performed within a year; a signed writing is required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is Actual Authority in an agency?

A

Actual Authority is what is expressly granted or is implied by the duties you expect the Agent to perform and is necessary to carry them out

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What is Implied Authority in an agency?

A

When authority is expressly granted; it is implied that the agent has the authority to carry out the duties

Does not include authority to sell or alter a business

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

What is Apparent (Ostensible) Authority in an agency?

A

Apparent Authority is based on the third party’s perspective - they believe that the Agent has the
authority to enter into a contract based on:

  • Prior dealings with agent
  • Agent’s title leads the third party to believe they can enter into a contract
  • The Principal hires the Agent to carry out duties that normally carry with them the rights to enter into contracts
How well did you know this?
1
Not at all
2
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32
Q

How is an Agency terminated?

A
  • Both Agent and Principal agree to terminate
  • Principal fires Agent
  • Agent fires Principal
  • Agent breaches their contract by doing something like violating their obligation to act as a fiduciary to Principal
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

How do you terminate Apparent Authority?

A
  • Let the public know
  • Let the people or entities that the Agent previously interacted with know
  • In cases of death; or Principal is otherwise not competent to contract; ALL authority is revoked
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What is an Agency Coupled with an Interest?

A

Agent acquires an ownership interest in the Agency

Can only be terminated early (before the interest expiration date) by the Agent

Unless the Agency has a specific time limit spelled out in a contract; the Agent’s authority is irrevocable
by the Principal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

When is an employee an Agent; and when does this make the employer liable?

A

Employees are agents while acting within the scope of their duties.

For employees who injure third parties while acting within the scope of their duties; both Employee and Employer are liable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

When are Agents liable for torts (civil wrongs) they commit?

A

Agents are liable for torts (civil wrongs) committed whether they had authority or not

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Are Agents who act outside of their authority liable?

A

Agents who act outside of their authority will be liable for the act

Exception - Principal ratifies the contract which relieves Agent of liability

In order to ratify; Principal must know all of the facts and must ratify before third party cancels agreement

If Principal keeps the benefits of the contract; ratification is implied

Contract must be 100% ratified or there is no contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

What is an Agent’s liability when acting for an undisclosed principle?

A
  • Agent liable to third party even if acting within authority
  • Third party can sue both Principal and Agent if Principal becomes disclosed
  • Agent can then sue Principal
39
Q

What are the requirements for a Power of Attorney (POA)?

A

Must be in writing

Must be signed by person granting the POA

Ends upon death of Principal

General POA - Agent authorized to handle all affairs

Special POA - Agent authorized to handle only specific affairs

40
Q

What are the basic actions that occur in a bankruptcy?

A

Bankruptcy gives creditors protection from their creditors and stops them from either permanently (Chapter 7) or temporarily (Chapter 11 or 13) collecting a debt. The filing halts collection activity; grants automatic stay (with certain exceptions), and stops creditors from suing debtor.

41
Q

For what debts does bankruptcy NOT stop collections?

A 
Student Loans
Income taxes from previous 3 years
Alimony & Child Support
Debts/judgements resulting from drunk driving
Pension obligations
Debts relating to SOX violations
Debts arising from illegal activities
Debts not listed in the bankruptcy filing
42
Q

How does bankruptcy of a corporation affect the owner’s ability to file bankruptcy?

A

It doesn’t; because the corporation is a separate legal entity.

Under bankruptcy; corporations are dissolved

Under bankruptcy; individuals are discharged

43
Q

What key action will cause a bankruptcy discharge to be denied?

A

If a debtor fails to keep good records or falsifies documents; a discharge will be denied

44
Q

What are the basic characteristics of a Chapter 7 bankruptcy (liquidation)?

A

Discharges all non-exempt debt

Can only be filed every 8 years from previous Chapter 7 filing

Voluntary or involuntary filing

Certain businesses are disallowed from Chapter 7 bankruptcies - Railroads; Banks; Insurance companies; Savings & loans (think: 7th inning RBIs)

45
Q

What are the requirements for a voluntary bankruptcy filing under Chapter 7?

A

Must pass means test

Your income must be below the median income for your state (Note - median; i.e. middle; not mean; i.e. average)

Credit card companies made it harder for people to declare Chapter 7 when they lobbied Congress in 2005

46
Q

What are the requirements for an involuntary bankruptcy filing under Chapter 7?

A

In some cases; your creditors can force you into Chapter 7 or Chapter 11 BK

Creditors must be able to prove that they are not being paid on time (i.e. debtor is insolvent) or that within the past 120 days the debtor assigned a custodian of the secured property

If 12+ unsecured creditors - at least 3 must file; claims must be in excess of $15325

If less than 12 unsecured creditors - only 1 must file; claim(s) must be in excess of $15325

Upon filing; a judge will declare an order for relief unless the debtor protests

47
Q

What entities are disallowed from involuntary Chapter 7 bankruptcy filings?

A

Charities

Farms

48
Q

How can a debtor reclaim possession of their property from the interim bankruptcy under Chapter 7?

A

If the debtor pays the court-assigned bond to keep a property in an involuntary BK; they can
reclaim possession of their property from the interim BK trustee

49
Q

What are the basic characteristics of a Chapter 11 bankruptcy (business repayment) filing?

A

Allows a business a reprieve from creditors
Creates a payment plan for the debt
Business remains in operation
At least 2/3 of each debt class of creditors must consent to reorganization
Ch. 11 Involuntary petitions are allowed

50
Q

What are the basic characteristics of a Chapter 13 bankruptcy (personal repayment) filing?

A

Similar to Chapter 11; but for individuals

Gives individuals a reprieve from creditors

Creates a payment plan for the debt

Ch. 13 Involuntary petitions are not allowed

51
Q

What are the duties and abilities of a bankruptcy trustee?

A

Represents the bankruptcy estate

Can sue or be sued

Oversees bankruptcy and watches for preferential creditor payments

Oversees priority transfer of assets to creditors

52
Q

How and when is a bankruptcy trustee appointed?

A

Optional - Creditors decide

Can be elected by creditors or can be appointed by the court

53
Q

What actions can a bankruptcy trustee take with respect to preferential creditor payments in a bankruptcy?

A

Trustee can void payments on antecedent (past) debts that occur within 90 days of a BK filing

A Trustee cannot void a payment made to a creditor that is an even swap (contemporaneous exchange) and for new value

A voidable preference must be on an old debt where the debtor is basically picking and choosing which creditors they send money to (AKA a voidable preference)

54
Q

When can preferential transfers be voided by a bankruptcy (BK) trustee?

A

Made within One Year of BK to insider - Corporate officers/directors; Partners; Relatives

Made within 3 Months of BK non-insider

Creditor receives larger payment than BK liquidation would have granted

55
Q

What is the treatment of a secured creditor in a bankruptcy?

A

Superior to claims of other types of creditors

Can take either collateral or cash proceeds from the sale of an asset

If collateral doesn’t satisfy amount owed; Secured Creditors become a general creditor for the difference.

56
Q

What is the order of priority given to unsecured creditors in a bankruptcy?

A
  1. Court Costs and Fees
  2. Child Support & Alimony
  3. Expenses from ordinary course of business during bankruptcy proceedings
  4. Wages owed to employees
  5. Retirement contributions within last 6 months
  6. Consumer deposits for undelivered goods
  7. Taxes
  8. Other general unsecured claims
57
Q

What are key aspects of a bankruptcy involving a landlord or leases under Chapter 7?

A

The bankruptcy trustee can act in the best interest of the creditors and assign the leases under contract to the creditors

The trustee has 60 days to assume leases on equipment after bankruptcy is granted or the leases will be rejected

58
Q

What is the bankruptcy estate?

A

The pool of assets available to creditors until liquidation

59
Q

What assets are exempt from creditors in a bankruptcy estate?

A

Social security

Disability payments

Unemployment; Child Support; Alimony; Wages; Pensions; Annuities to the extent that they provide reasonable support for debtor and dependents

60
Q

How long after a Chapter 7 bankruptcy filing can creditors claim inheritance or insurance payments for repayment?

A

Inheritance/Insurance payments received within 180 days of filing for a Chapter 7 bankruptcy become part of the BK Estate

61
Q

What is a garnishment with respect to a bankruptcy?

A

Court allows a creditor to garnish or take a portion of the debtor’s paycheck

62
Q

What is a mechanics lien?

A

Lien on real property to secure payment for a repair/improvement done to the house

A contractor builds an addition to your house and you won’t pay. They can’t repo your house; so they get a Mechanics Lien that sticks until you sell your house and they get paid

63
Q

What is an artisan’s lien?

A

Applies to personal property like a car

If the dealership does $500 in repairs to your car; you don’t get the car back until you pay

64
Q

What is a surety (co-signing)?

A

A third party agrees to be liable for a loan

Example: A parent co-signs on their child’s car loan

65
Q

How is a surety liable in a transaction?

A

A surety is primarily liable

Surety can be released from liability if the creditor behaves in a way that increases the risk that they
initially agreed to

Surety can be released from liability if the debtor changes the loan agreement in a way that materially
increases the surety’s risk

66
Q

What is a cosurety; and how are they liable in a transaction?

A

Two sureties are guaranteeing the same debt

Proportionately liable - If one cosurety is released from their obligation; then the remaining cosureties
have their proportionate share reduced by the released party’s percentage

If one surety pays more than their proportionate share of the risk; then the other sureties must compensate them for the difference; which is called Right of Contribution

67
Q

What is a guarantor?

A

Similar to surety; but a guarantor is secondarily liable

68
Q

What are the basic rights of a debtor under the Fair Debt Collection Practices Act?

A

Basically - your creditors have the right to collect from you; but not abuse you or embarrass you

The can’t contact you once you’re represented by an attorney

They can call other people to find out where you are; but they cannot identify themselves as collectors

They must stop calling you at work if you send them a certified letter that says my employer doesn’t allow me to take calls at work.

They must call you only at reasonable hours of the day - according to your time zone; not theirs

69
Q

What is Agency Law?

A

Agency Law deals with someone’s ability to bind you to a contract with a third party

70
Q

What is required for Agency to exist?

A

Both parties must consent to the relationship and intend for an Agency relationship to exist

Agent owes Principal fiduciary duty

Principal doesn’t owe Agent fiduciary duty

A contract is NOT required and an Agency agreement is not based on Contract Law; Exception - If duties cannot be performed within a year; a signed writing is required

71
Q

What is Actual Authority in an agency?

A

Actual Authority is what is expressly granted or is implied by the duties you expect the Agent to perform and is necessary to carry them out

72
Q

What is Implied Authority in an agency?

A

When authority is expressly granted; it is implied that the agent has the authority to carry out the duties

Does not include authority to sell or alter a business

73
Q

What is Apparent (Ostensible) Authority in an agency?

A

Apparent Authority is based on the third party’s perspective - they believe that the Agent has the
authority to enter into a contract based on:

  • Prior dealings with agent
  • Agent’s title leads the third party to believe they can enter into a contract
  • The Principal hires the Agent to carry out duties that normally carry with them the rights to enter into contracts
74
Q

How is an Agency terminated?

A
  • Both Agent and Principal agree to terminate
  • Principal fires Agent
  • Agent fires Principal
  • Agent breaches their contract by doing something like violating their obligation to act as a fiduciary to Principal
75
Q

How do you terminate Apparent Authority?

A
  • Let the public know
  • Let the people or entities that the Agent previously interacted with know
  • In cases of death; or Principal is otherwise not competent to contract; ALL authority is revoked
76
Q

What is an Agency Coupled with an Interest?

A

Agent acquires an ownership interest in the Agency

Can only be terminated early (before the interest expiration date) by the Agent

Unless the Agency has a specific time limit spelled out in a contract; the Agent’s authority is irrevocable
by the Principal

77
Q

When is an employee an Agent; and when does this make the employer liable?

A

Employees are agents while acting within the scope of their duties.

For employees who injure third parties while acting within the scope of their duties; both Employee and Employer are liable

78
Q

When are Agents liable for torts (civil wrongs) they commit?

A

Agents are liable for torts (civil wrongs) committed whether they had authority or not

79
Q

Are Agents who act outside of their authority liable?

A

Agents who act outside of their authority will be liable for the act

Exception - Principal ratifies the contract which relieves Agent of liability

In order to ratify; Principal must know all of the facts and must ratify before third party cancels agreement

If Principal keeps the benefits of the contract; ratification is implied

Contract must be 100% ratified or there is no contract

80
Q

What is an Agent’s liability when acting for an undisclosed principle?

A
  • Agent liable to third party even if acting within authority
  • Third party can sue both Principal and Agent if Principal becomes disclosed
  • Agent can then sue Principal
81
Q

What are the requirements for a Power of Attorney (POA)?

A

Must be in writing

Must be signed by person granting the POA

Ends upon death of Principal

General POA - Agent authorized to handle all affairs

Special POA - Agent authorized to handle only specific affairs

82
Q

What is Agency Law?

A

Agency Law deals with someone’s ability to bind you to a contract with a third party

83
Q

What is required for Agency to exist?

A

Both parties must consent to the relationship and intend for an Agency relationship to exist

Agent owes Principal fiduciary duty

Principal doesn’t owe Agent fiduciary duty

A contract is NOT required and an Agency agreement is not based on Contract Law; Exception - If duties cannot be performed within a year; a signed writing is required

84
Q

What is Actual Authority in an agency?

A

Actual Authority is what is expressly granted or is implied by the duties you expect the Agent to perform and is necessary to carry them out

85
Q

What is Implied Authority in an agency?

A

When authority is expressly granted; it is implied that the agent has the authority to carry out the duties

Does not include authority to sell or alter a business

86
Q

What is Apparent (Ostensible) Authority in an agency?

A

Apparent Authority is based on the third party’s perspective - they believe that the Agent has the
authority to enter into a contract based on:

  • Prior dealings with agent
  • Agent’s title leads the third party to believe they can enter into a contract
  • The Principal hires the Agent to carry out duties that normally carry with them the rights to enter into contracts
87
Q

How is an Agency terminated?

A
  • Both Agent and Principal agree to terminate
  • Principal fires Agent
  • Agent fires Principal
  • Agent breaches their contract by doing something like violating their obligation to act as a fiduciary to Principal
88
Q

How do you terminate Apparent Authority?

A
  • Let the public know
  • Let the people or entities that the Agent previously interacted with know
  • In cases of death; or Principal is otherwise not competent to contract; ALL authority is revoked
89
Q

What is an Agency Coupled with an Interest?

A

Agent acquires an ownership interest in the Agency

Can only be terminated early (before the interest expiration date) by the Agent

Unless the Agency has a specific time limit spelled out in a contract; the Agent’s authority is irrevocable
by the Principal

90
Q

When is an employee an Agent; and when does this make the employer liable?

A

Employees are agents while acting within the scope of their duties.

For employees who injure third parties while acting within the scope of their duties; both Employee and Employer are liable

91
Q

When are Agents liable for torts (civil wrongs) they commit?

A

Agents are liable for torts (civil wrongs) committed whether they had authority or not

92
Q

Are Agents who act outside of their authority liable?

A

Agents who act outside of their authority will be liable for the act

Exception - Principal ratifies the contract which relieves Agent of liability

In order to ratify; Principal must know all of the facts and must ratify before third party cancels agreement

If Principal keeps the benefits of the contract; ratification is implied

Contract must be 100% ratified or there is no contract

93
Q

What is an Agent’s liability when acting for an undisclosed principle?

A
  • Agent liable to third party even if acting within authority
  • Third party can sue both Principal and Agent if Principal becomes disclosed
  • Agent can then sue Principal
94
Q

What are the requirements for a Power of Attorney (POA)?

A

Must be in writing

Must be signed by person granting the POA

Ends upon death of Principal

General POA - Agent authorized to handle all affairs

Special POA - Agent authorized to handle only specific affairs

CPA REG (19 decks)

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