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Utah Essay Bar Studies > Agency/Part > Flashcards

Agency/Part Flashcards

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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
Q

Partially Disclosed Principal

A

3rd party has notice of existence
But not identity
Unless agreed to
Agent becomes party to agreement

26
Q

Undisclosed Principal

A

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
Q

Duties of Agent

A

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
Q

Formation of Partnership

A

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
Q

Test to Determine if Partnership formed

A

Whether sharing of profits

30
Q

Exceptions to Test of Whether Partnership Formed

A 
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
Q

Relationship of Partner to Partnership

A

Partner is Agent

32
Q

Partner Duty of Loyalty

A

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
Q

Limitations of Duty of Loyalty of Partner

A

Partnership agreement may not eliminate but may identify specific activities that do not violate

34
Q

Duty of Loyalty Partner Safe Harbor

A

Certain number of partners could authorize or ratify transaction with full disclosure

35
Q

Duty of Care Partner

A

Refrain from engaging in grossly negligent or
Reckless conduct
Intentional misconduct or
Knowing violation of law

36
Q

Limitations of Duty of Care Partner

A

May not reduce duty unreasonably

37
Q

Profits/Losses Partnership

A

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
Q

Management Rights Partnership

A

Equal rights in management and conduct
Ordinary Business, majority of partners can make decisions
Special Business, unanimous vote can make decisions

39
Q

Power to Bind Partnerships to K

A

Partner as agent can contractually bind

40
Q

Liability for Partner’s Tortious Acts

A

Liable for partner’s tortious acts committed in

Ordinary course of business with authority

41
Q

Liability of Partner to 3rd Parties

A

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
Q

Types of Dissolution

A

At Will

Term or Undertaking

43
Q

Dissolution of Partnership

A

Happening of event triggers dissolution

44
Q

Will dissolve any partnership

A

Dissolving event in partnership agreement
Event that makes it unlawful to continue, or
There is judicial determination

45
Q

Dissolution of At Will Partnership

A

Open-ended partnership
With no fixed termination
Dissolved when partner chooses to dissociate
Modernly not automatically trigger dissolution

46
Q

Dissolution of Term or Undertaking Partnership

A

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
Q

Winding Up Partnership

A

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
Q

Distribution fo Winding Up Partnership

A

Outside creditors
Internal creditors
Remaining to the partners

49
Q

Limited Liability Partnership (“LLP”)

A

Partner’s personal liability eliminated

50
Q

Formation of LLP

A

Filing statement of qualification with state
Must be approved by vote necessary to
Amend partnership agreement
If silent, requires approval of all partners

51
Q

Limited Partnership (“LP”)

A

Formed by two or more persons

Has at least 1 general partner and 1 limited partner

52
Q

Formation of LP

A

Certificate filed with state and must list all general partners

53
Q

Creation of Limited Parter After Creation

A

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
Q

Transfer of Partnership Interest

A

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
Q

Dissociation

A

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
Q

2001 uniform limited partnership act

A

Renders control rule extinct

If limited partners participate in

Control then shielded

57
Q

Transferee of Interest Dissolution

A

May seek dissolution if

Partnership at will

Term or undertaking completed

Utah Essay Bar Studies (16 decks)

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