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Utah Essay Bar Studies > Agency/Part > Flashcards

Agency/Part Flashcards

1
Q

Creation of Agency Relationship

A 
Both parties manifest assent
Agent acts on principal’s behalf
Agent’s actions subject to principal’s control
Consideration not required and 
Need not be in writing
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2
Q

Agent Requirements

A

Any person can serve as agent

So long as has minimal capacity

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3
Q

Principal Requirements

A

Must have capacity to consent to
Agency relationship and
To enter into transaction to which
Agent will bind principal

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4
Q

Emp/Emp Agency Rel

A

Factors:
Principal exercises significant control over
Details of day-to-day activities
Principal supplies tools
Principal pays work on structured pay period
Worker’s skill level specialized, and
Principal directs work to completion

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5
Q

Indep Contractor Agency Rel

A 
Bears risk and benefits from management
Maintains high level of independence
Free to work for others
Agrees to be paid fixed fee
Receives payment based on results
Liable for work performed, and 
Accepts responsibility to remedy at own expense
Principal less likely to be liable here
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6
Q

Liab of Prin to 3rd Parties

A

Principal subject to liability when agent acts on behalf of
Principal if agent has authority to bind
Tort or K

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7
Q

Types of Authority

A

Express Actual
Implied Actual
Apparent

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8
Q

Express Actual Auth

A 
Created by oral or written words
By clear, direct, and definite language, or 
Specific detailed terms and instructions
Principal’s manifestation must cause
Agent to reasonably believe agent
Doing what principal wants
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9
Q

Implied Actual Auth

A

Allows agent to take whatever actions
Necessary to achieve principal’s objectives
Based upon agent’s reasonable
Understanding of objectives
May be determined by customary
Business practices within trade or by
Position that customarily has certain authority

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10
Q

Acquiescence Implied Auth

A 
If principal accepts agent’s acts or 
Fails to object to unauthorized action 
Affirms agent’s belief those actions 
Further principal’s objections and 
Support authority for future
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11
Q

Apparent Auth

A

Reasonable reliance by 3rd party
Agent has authority
Perception based upon principal’s
Actions to third party

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12
Q

Reas Belief of Apparent Auth

A

Past dealings between principal and agent
And 3rd party aware
Trade customs regarding similar transaction
Relevant industry standards
Principal’s written statement of authority, or
Transactions that do not benefit principal

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13
Q

Term of Agency Rel

A 
Principal’s revocation
Principal’s agreement with agent
Change of circumstances
Passage of time
Principal or agent’s death
Principal’s loss of capacity or 
Statutorily mandated termination
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14
Q

Ratification by Prinicipal

A

Principal must ratify entire act
Principal must have legal capacity to ratify
Must be timely and
Principal must have knowledge of material facts

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15
Q

Vicarious Liability

A

Principal liable for acts of agent
Even though principal innocent of fault and
Not directly guilty of any tort or crime

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16
Q

Respondeat Superior

A 
Tort committed by agent acting within 
Scope of Employment
Performing work assigned by employer  OR
Engaging in course of conduct 
Subject to employer’s control
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17
Q

Types of Work Travel

A

Direct
Frolic
Detour

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18
Q

Direct Work Travel

A

Employee traveling during workday and

Does not deviate

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19
Q

Frolic Work Travel

A

Takes significant deviation from path

Outside scope of employment

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20
Q

Detour Work Travel

A

Takes de minimis departure from route

Within scope of employment

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21
Q

Direct Liability of Princ

A

Principal authorizes or ratifies conduct
Principal negligent in selecting, supervising, or controlling
Principal delegates performance of non-delegable duty

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22
Q

Liability of Agents for K

A

May become party to k
Depending on terms and
Degree to which agent disclosed principal

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23
Q

How to Avoid Agent Becoming Party to K

A

Enter into k on behalf of principal
Disclose both existence and identity and
Not agree to become party to k

24
Q

Disclosed Principal

A

3rd party has notice of both

Existence and identity of principal

25
Partially Disclosed Principal
3rd party has notice of existence But not identity Unless agreed to Agent becomes party to agreement
26
Undisclosed Principal
3rd party has no notice of principal’s existence Both the principal and the agent are liable Election of remedies applies Hold either principal OR agent not both
27
Duties of Agent
Duty of care to perform with reasonable diligence and skill Duty to provide info regarding matters relating to relationship Duty of loyalty to work only for principal Duty of obedience Duty to not usurp
28
Formation of Partnership
Association of two or more persons to Carry on for-profit business as co-owners No writing necessary and Intent need not be to form a partnership
29
Test to Determine if Partnership formed
Whether sharing of profits
30
Exceptions to Test of Whether Partnership Formed
``` Debt payments, including installments Interest or other loan charges Rent Wages or other compensation Goodwill pmts stemming from sale of business Annuities or other retirement benefits ```
31
Relationship of Partner to Partnership
Partner is Agent
32
Partner Duty of Loyalty
Refrain from competing with business Advancing interest adverse AND Usurping a partnership opportunity or using partnership prop for personal benefit Without first notifying partnership
33
Limitations of Duty of Loyalty of Partner
Partnership agreement may not eliminate but may identify specific activities that do not violate
34
Duty of Loyalty Partner Safe Harbor
Certain number of partners could authorize or ratify transaction with full disclosure
35
Duty of Care Partner
Refrain from engaging in grossly negligent or Reckless conduct Intentional misconduct or Knowing violation of law
36
Limitations of Duty of Care Partner
May not reduce duty unreasonably
37
Profits/Losses Partnership
Partnership agreement controls Not required to share on per capita basis If no agreement or the agreement is silent, then equal share of profits and losses If only profits decided, losses follow profits
38
Management Rights Partnership
Equal rights in management and conduct Ordinary Business, majority of partners can make decisions Special Business, unanimous vote can make decisions
39
Power to Bind Partnerships to K
Partner as agent can contractually bind
40
Liability for Partner’s Tortious Acts
Liable for partner’s tortious acts committed in | Ordinary course of business with authority
41
Liability of Partner to 3rd Parties
Partner jointly and severally liable for all partnership obligations To collect from a partner directly, must obtain judgment against the partner Must exhaust partnership assets first if both partner and partnership named
42
Types of Dissolution
At Will | Term or Undertaking
43
Dissolution of Partnership
Happening of event triggers dissolution
44
Will dissolve any partnership
Dissolving event in partnership agreement Event that makes it unlawful to continue, or There is judicial determination
45
Dissolution of At Will Partnership
Open-ended partnership With no fixed termination Dissolved when partner chooses to dissociate Modernly not automatically trigger dissolution
46
Dissolution of Term or Undertaking Partnership
Term expires or undertaking complete All partners agree to dissolve Partner is dissociated due to death, bankruptcy, or Other circumstance, and within 90 days Majority of remaining partners agree to dissolve
47
Winding Up Partnership
Continues only to wind up business Any person not wrongfully dissociated may Participate in winding up partnership’s business Including legal representative of last surviving partner
48
Distribution fo Winding Up Partnership
Outside creditors Internal creditors Remaining to the partners
49
Limited Liability Partnership ("LLP")
Partner’s personal liability eliminated
50
Formation of LLP
Filing statement of qualification with state Must be approved by vote necessary to Amend partnership agreement If silent, requires approval of all partners
51
Limited Partnership ("LP")
Formed by two or more persons | Has at least 1 general partner and 1 limited partner
52
Formation of LP
Certificate filed with state and must list all general partners
53
Creation of Limited Parter After Creation
By written consent of all partners unless partnership agreement states otherwise Generally not personally liable for obligations of LP unless also serving as GP or participates in control
54
Transfer of Partnership Interest
Partner has transferable partnership interest May transfer right to share in profits/losses and distributions Transfer creates in transferee right to receive distributions DOES NOT make them partner unless other partner(s) consent.
55
Dissociation
Can withdraw or dissociate from partnership at any time, even if wrongful like violates agreement Partner who wrongfully dissociates liable to partnership Other partners for damages caused by dissociation Generally no right to participate in management or Conduct of partnership business and Cannot participate in winding up
56
2001 uniform limited partnership act
Renders control rule extinct If limited partners participate in Control then shielded
57
Transferee of Interest Dissolution
May seek dissolution if Partnership at will Term or undertaking completed

Utah Essay Bar Studies (16 decks)

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