Agency+Partnership Flashcards

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1
Q

Agency

A

Manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act

  • Consent - Both parties required
  • On behalf of - Agent must be acting primarily for principal’s benefit
  • Control - Degree of control doesn’t have to be significant; task specification is enough
  • Capacity - P must have contractual capacity, but A doesn’t if intermediary
  • Writing - No req, BUT SoF equal dignities rule
  • Consideration - NONE
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2
Q

K Liability - Authority - Actual

A

A reasonably thinks she has based on P’s manifestations

  • Express - Authority conveyed in words
  • Implied - Authority implied from P’s: (1) words/conduct, (2) custom, OR (3) acquiescence
  • Termination/revocation:
    (a) After a specified time/event, or after a reasonable time
    (b) Change of circumstances
    (c) Breach of A’s fiduciary duty
    (d) Unilateral act of EITHER P or A
    (e) Death or incapacity of P or A
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3
Q

K Liability - Authority - Apparent

A

P holds out another as possessing authority and a third party is reasonable led to believe it

  • Power of Position - Apparent authority can result from A’s title/position given by P
    (a) Might also establish actual
  • Unilateral reps by A - Can’t create apparent authority
    (a) BUT can if in P’s presence and P is silent
  • Lingering apparent authority - Apparent can linger after actual ends
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4
Q

K Liability - Authority - Ratification

A

Ex post authority even if A had no authority at time of entering into K

  • Methods of ratification:
    (a) Express - Verbal affirmation of K
    (b) Implied - P accepts the benefits of K
  • Reqs for ratification:
    (1) P must have knowledge of ALL material facts re K,
    (2) P must accept the ENTIRE tx, not just part, and
    (3) Ratification can’t alter rights of intervening parties
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5
Q

K Liability - Rules of Liability

A
  • P is liable on K, and A is not, if had actual, apparent, or ratification
  • Exception - P AND A are liable if P was undisclosed or partially disclosed
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6
Q

Duties - A to P

A

Owes fiduciary duties

  • Duty of Care - Must carry out agency w reasonable care; sliding scale based on A’s skills
  • Duty of Loyalty:
    (1) Account to P for profits made while carry out instructions
    (2) Act solely for P’s benefit
    (3) Refrain from dealing with P as adverse party or acting on behalf of adverse party
    (4) Don’t compete with P concerning subject of agency
    (5) Don’t use P’s property for own purposes
  • Duty of Obedience - Obey all reasonable directions of P
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7
Q

Duties - P to A

A
  • NOT fiduciary
  • Duty to Indemnify - Indemnify A against expenses/losses in carrying out instructions
  • Duty to compensate A for services; inferred unless indications otherwise
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8
Q

Tort Liability - Servant/Employee vs IC

A
  • Servant/Employee - Subject to the control of another as to the MEANS used to achieve a result
  • IC - Subject to the control of another as to RESULTS only; factors:
    (a) Skill required
    (b) Tools and facilities
    (c) Period of employment
    (d) Basis of compensation (if time, more likely servant)
    (e) Business purpose
    (f) Distinct business
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9
Q

Tort Liability - Rules

A
  • Servants & Unintentional Torts - P liable for A’s torts IF A acting in scope of employment
    (1) Was conduct “of the kind” hired to do?
    (2) Did tort occur “on the job”? - Minor deviation (“detour”) is on the job; substantial deviation (“frolic”) isn’t
    (3) Was conduct done at least in part to benefit P?
  • Servants & Intentional Torts - P NOT liable UNLESS conduct is:
    (1) Natural from nature of job,
    (2) Motivated to serve P, OR
    (3) Specifically authorized/ratified by P
  • Borrowed Servants - P who has the “primary right of control” is the one liable
  • ICs - P not liable
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10
Q

Partnership - Formation

A
  • Partnership formed when 2 or more persons associate to carry on as co-owners a business for profit, regardless of whether they intend to form a partnership
  • No filings/formalities required
    (a) BUT maybe SoF equal dignities rule
  • Factors:
    (a) Sharing of profits
    • Most important
    • Presumed partner UNLESS payment: (1) of a debt, (2) as wages/compensation, (3) as rent, or (4) as interest on loan
      (b) Right to participate in control of the business
      (c) Sharing of losses
  • Partnership by estoppel - If no partnership was formed in fact, parties may still be liable as if they were partners to protect reasonable reliance by third parties
  • Partnership agreement - Not required, but K laws allows one to contract around almost all statutory provisions
    (a) Can be written, oral, or implied
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11
Q

Partnership - Management/Operation

A
  • Voting
    (a) Unless otherwise agree, all partners have equal votes
    (b) Decisions re matters in ordinary course of bus require majority
    (c) Decisions re matters outside ordinary course require unanimity
    (d) Admitting new partners requires unanimity
  • Salary/compensation - Unless otherwise agreed, NO right
    (a) Exception - Compensation for services rendered in winding up
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12
Q

Partnership - Liability

A
  • Sharing profits/losses
    (a) Profits - Unless otherwise agreed, shared equally
    (b) Losses - Unless otherwise agree, shared in same manner as profits
  • Liability of partnership
    (a) Tort - Liability for acts of partner OR employee acting in the ordinary course of bus OR w authority of partnership
    (b) K - Liable for Ks entered into by partners w actual or apparent authority
  • Actual authority
    (a) Can be created by: (1) partnership agreement, (2) vote, or (3) filing “Statement of Partnership Authority” w sec of state
    (b) If (3):
    • If authority re real property - Binding on third parties if statement also recorded in county where property is
    • If authority re other tx - Binding on partnership AND third parties if GRANTS of authority, but NOT restrictions (unless actual knowledge of them)
  • Apparent authority - Each partner has apparent authority as agent to bind partnership in ordinary course of bus
  • All partners jointly and severally liable for partnership obligations (after exhausting partnership’s resources)
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13
Q

Partnership - Fiduciary Duties

A
  • Partners owe loyalty and care to each other, as well as statutory duty of disclosure
  • Duty of Loyalty
    (a) Account to partnership for any benefit derived conducting bus, using property, or appropriating opp
    (b) Refrain from acting adverse/w adverse party
    (c) Refrain from competing
  • Duty of Care - Refrain from ~grossly negligent~ or ~reckless~ conduct, intentional misconduct, or knowing violation of law
  • Duty of Disclosure - Partner and partnership shall furnish to a partner:
    (a) WITHOUT demand - Any info concerning bus reasonably required for proper exercise of rights/duties
    (b) WITH demand - Any other info concerning bus unless unreasonable/improper
  • Agreement can NOT eliminate loyalty or care; can eliminate disclosure
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14
Q

Partnership - Property

A
  • Ownership of property:
    (a) If acquired in partnership’s name or partner’s in doc where apparent acting for partnership - Partnership property
    (b) If partnership funds used - ~Presumed~ partnership property
    (c) If acquired in partner’s name without pship funds or sign acting for pship - ~Presumed~ partner property
  • Rights in partnership property
    (a) Rights are totally unrestricted
    (b) Partner is NOT co-owner of partnership property; can simply use property for pship purposes
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15
Q

Partnership - Partner Ownership Interest

A
  • Ownership interest is partner’s personal property
  • Comprised of (1) management rights, and (2) financial rights
  • Restrictions:
    (a) Unless otherwise agreed, partner CAN’T unilaterally transfer management rights
    (b) Unless otherwise agreed, partner CAN unilaterally transfer financial rights
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16
Q

Partnership - Dissociation

A

A withdrawal of a partner

  • Events:
    (a) Giving notice to pship of desire to withdraw (“by express will”)
    (b) Expulsion, death, or bankruptcy
    (c) Agreed-upon events
    (d) Appointment of a receiver for a partner
  • At-will vs term pships:
    (a) At-will - Default; partners haven’t agreed to remain partners until expiration of a term/completion of undertaking
    (b) Term - Agreed to remain partners for a definite term or until completion of undertaking
  • Wrongful dissociation if:
    (a) In breach of express term in partnership agreement, OR
    (b) In a term pship, if partner withdraws, is expelled, or becomes bankrupt before term ends; if does, liable for damages
  • Consequences (typically determined by nature of event of dissociation):
    (a) Pship dissolved, bus wound up (“liquidation”)
    (b) Pship continues, but dissociated partner entitled to a buyout
    • If dissociation wrongful, damages offset by buyout price
  • Liability of dissociated partner
    (a) Remains liable for pre-dissociation obligations
    (b) Liable for post-dissociation liabilities within 2 years UNLESS: (1) notifies creditors, effective immediately, OR (2) files public statement, effective 90 days later
  • Apparent authority of dissociated partner
    (a) Has AA to bind pship for time not exceeding 2 years UNLESS (1) pship notifies creditors, effective immediately, OR (2) pship files a public statement, effective 90 days later
17
Q

Partnership - Dissolution

A

Pship ceases to exist and bus is wound up

  • Required only in limited circumstances. Two impt circumstances:
    (a) When a partner dissociates by express will in an at-will pship
    (b) In a term pship, when one partner dissociates wrongfully OR bc of death/bankruptcy - Dissolution required ONLY IF, within 90 days of dissociation, 1/2 of remaining partnerships agree to wind up
  • Money issues:
    (a) If assets are insufficient for liabilities, individual partners must contributed based on LOSS shares
    (b) If excess assets, distributed based on PROFIT shares
    (c) Priority of distribution:
    (1) Pay all creditors, outside and inside
    (2) Repay all capital contributions by partners
    (3) Profits or losses
  • Apparent authority
    (a) Partners retain AA after winding up UNLESS: (1) pship notifies creditors, effective immediately, OR (2) any partner not wrongfully dissociated files a public statement, effective 90 days later
18
Q

LPs

A

A pship with at least one general partner and at least one limited partner

  • Formation - File a certificate with sec of state; requirements:
    (1) Name (must have stuff)
    (2) Name and address of agent
    (3) Name and address of each general partner
  • Partnership agreement - Can be written, oral, or implied, and can displace statutory provisions
  • Management and operation
    (a) LP managed by general partners, each with equal rights
    (b) Ordinary bus activities require majority vote of GPs
    (c) Extraordinary activities require unanimity of ALL partners
  • Financial rights
    (a) Distributions made based on partners’ contributions
  • Liability
    (a) GPs - Liable for obligations of pship
    (b) LPs - NOT personally liable for pship obligations
  • Fiduciary duties
    (a) GP whos pship and others loyalty+care
    (b) LP has NO fiduciary duties
19
Q

LLPs/RLLPs

A

A general pship where ALL of the partners have limited liability.

  • Formation - File a Statement of Qualification w sec of state; requirements:
    (1) Name and address of LLP
    (2) Statement that pship elects to be LLP
    (3) Deferred effective date, if any
  • Liability
    (a) Partners NOT personally liable for LLP obligations
20
Q

LLCs

A

A hybrid bw a corp and a pship in which the owners (“members”) have limited liability, as well as the benefits of pship tax treatment

  • Formation - File articles/cert of org w sec of state; requirements:
    (1) Name of the LLC
    (2) Address of LLC’s registered office
    (3) Name and address of registered agent
  • Operating agreement - Can displace most statutory provisions
  • Management and operation
    (a) Management is presumed to be by ALL of the members
    (b) Majority vote required for ordinary bus decisions
    (c) Unanimous vote of members (or managers if manager-managed) required for extraordinary bus decisions
  • Financial rights - Based on contributions
  • Liability - NOT personally liable
  • Fiduciary duties - Owed by member to the LLC AND to its members:
    (a) Care - Get BJR protection (negligent things OK)
    (b) Loyalty - Similar stuff as always
  • Transferability of ownership interests - Can transfer financial rights, but not management rights
  • Dissociation - Can dissociate at any time, rightfully or wrongfully, by express withdrawal; similar to pship stuff
  • Dissolution when (1) event/circumstance in operating agreement happens, (2) ALL members consent, OR (3) passage of 90 days during which LLC has no members
    (a) Member can also apply for JUDICIAL dissolution if: (1) all/substantially all of LLC’s activities are unlawful, OR (2) not reasonably practicable to carry on activities in conformity w certificate and operating agreement, OR (3) managers acting illegally/fraudulently, OR (4) managers oppressing members
  • Taxation - Pships AND LLCs taxed on pass-through basis