Business Associations Flashcards
Formation of Agency Relationship
ABC
Assent by both principal and agent
Behalf (agent will work on behalf of principal)
Control (subject to principal’s control)
Liability for Hiring IC
Inherently Dangerous Delegations Negate Health
Activity was inherently dangerous
Duty was non-delegable
P negligent in hiring IC
Ratification
Martians Train Martians Against Extra-Terrestrials Capabilities
Material Terms (knowledge of)
Manifest Assent
Entire Transaction
Capacities
Independent Contractor Factors
Students Take P.E. Purely Because Coaches Create Champions
Skills Tools and Facilities Period of Employment Purpose of business Business owned by contractor Characterization Compensation (basis) Custom
Intentional Torts of Employees
Natural Incognito Police Association
Natural Incident of Employee’s Duties
Employee is Promoting the Employer’s business
Specifically authorized or ratified
Business Judgment Rule
I’ve Got Faith, Cheating is Risky Business
D&O must perform their duties in good faith with such care as an ordinarily prudent person in a like position would use under similar circumstances, in a manner reasonably believed to be in the best interests of the corporation.
Duty of Loyalty (Fiduciary Duty Owed)
CIrCUIT
Approving Interested Transaction (Statutory Safe Harbor)
Four Moles Dug Deeper Swiftly
Fair and reasonable to corp.
Material facts disclosed
Disinterested directors approve (majority)
Shareholder majority (disinterested) approves
Corporate Opportunity
Lonely Buffalo In Evergreen Forest
Line of Business
Interest or Expectancy
Financially Able to take opportunity
Derivative suit requirements
Shannon Demands Red Furniture
was SH at time of act
written Demand on board
Remains SH through pendency of suit
Fairly and adequately represent corp. interests
Fundamental corporate changes
Royal Navy Sinks Fast
Resolution by board
Notice
Majority disinterested SH approve
File changes with state
10(b)(5)
Insane Clowns Murder Fluffy Squirrels Casually (Rough Day)
Interstate Commerce Material Fact (fraudulent conduct) (reasonable investor would consider important when making investment decision) Scienter Causation Reliance Damages
16(b)
I’ll take 2,000 Sex for $10M please Alex
2000 SH (500 non-accredited SH)
National Stock Exchange
$10M valuation
(Must be 10% owner both before and after purchase/sale)
Articles of Incorporation
No Sleep Available Anytime, Insomnia
Piercing the Corporate Veil
Alter Egos Feature in Capital Frauds
De Facto Corporation
Greek Freak is Everyone’s Championship Player
Ultra Vires Act
SHE CODS
Duty of Loyalty (Partnership)
All Penguins Ate Ice Cream
Account for Profits/Benefits
Don’t deal with partnership as Adverse Interest
don’t Compete with partnership
Nonfeasance Exceptions
Strange Roosters Caw Proudly Before Roosters Cock-a-doodle-doo
Special Relationship (parent child, common carriers) Created Peril (by D) undertaking for P's Benefit D's actions created Reliance Contract
Attractive Nuisance
Apples Falling Inspire Isaac’s Enlightenment
Aware of (should be) dangerous condition
children Frequent (attracted) to vicinity
likely to cause Injury (not aware of risk)
(Inability to appreciate risk)
Expense of remedy < danger of risk
Landlord Liability
CLAPS
Common Areas Latent Defects Assumed Repairs (negligently made) Public Use Short-Term lease of Furnished Dwelling (any defective condition)
Res Ipsa Loquitur
Tuna Sole Carp Casserole
Typical injury
Sole Control of instrumentality (caused by D)
p not Contributorily negligent.
Privacy Torts
Commercial Seaman Die First
Commercial appropriation
intrusion upon Seclusion
public Disclosure of private true facts
portrayal in False light
Strict Products Liability
Commercials Depict Children’s Creative Dioramas
Commercial Supplier
Defective when left D’s control
Causation (actual and proximate)
Damages
Design Defect
USA LOAF
FAT RUT
Usefulness/desirability of product
Safer Alternative design availability
Dangers of product identified by time of trial
Likelihood and probable seriousness of injury
Obviousness / public expectation of danger
Avoidability of injury by care in use of product
Feasibility of eliminating danger without seriously impairing products function or making Unduly expensive
Feasible alternative test: product could have been made safe w/o serious impact on price/utility
Risk-utility test: danger of design > utility to society, feasibility of alternative designs
Slander per se
Trade Talk Daily Chatter
P’s trade
moral Turpitude
loathsome Disease
lack of Chastity for women
Defamation
Deer Proudly Proffer Delicious Recipes
Public Figures False Feign Kindness, Rats
Defamatory statement
concerning Plaintiff
Publication
Damage to Reputation
Public Figure
Falsity
Fault
Knowing or Reckless
Misrepresentation/Fraud
Miniature Market Fears Robots, Jaws, and Dinosaurs
Malicious Prosecution
Pokemon Catcher Peter Parker Masters Discipline
no Probable Cause
no Proper Purpose
prevailed on Merits
suffered Damages
Exploitation of Natural Resources (Voluntary Waste)
PURGE
Prior Use of land for exploitation before grant
Repair or maintenance of land
express/implied Grant to exploit
suitable only for Exploitation
Joint Tenancy
4 Unities (T-TIP) Time Title Interest Possession
Adverse Possession (Prescription)
COACHES
Continuous Open and notorious ACtual possession Hostile Exclusive Statutory Period
Easement by Prescription (COAHS)
Fixtures (factors)
Nunchucks Attach Damage Against Evil Pirates
Nature of Item Manner of Attachment Amount of Damage Appropriateness of use with property Permanence of T's interest in property Purchaser Expect fixture as part of property
Zoning Ordinances (Validity)
Zoning With Restrictive Diagrams
Reasonably Related to Public Welfare
Not Too Restrictive
Not Discriminatory
Easement Creation
PING
Prescription
Implication
Necessity
express Grant
Termination of Easement
END CRAMPS
Estoppel Necessity (cessation of) Destruction (involuntary) Condemnation Release Abandonment Merger Prescription Stated conditions
Covenant (burden) to run
WITH N
Writing Intent Touch & concern land Horizontal and vertical privity Notice
Covenant (benefit) to run
WIT V
Writing
Intent
Touch and concern
Vertical privity
Valid Conveyance of Deed
Weird Delivery Address
Writing satisfying SOF (intent) (reasonably identify parties and land)
Valid delivery
Acceptance
Constructive Eviction
Loving Bull Shit Does Not Reveal Valor
Landlord breaches
Substantial and materially deprives tenant of use and enjoyment of property
provide LL with Notice and Reasonable time to Repair
Vacates
Future Covenants (Deed)
Quiet Enemies Wait For Assholes
Quiet enjoyment (promise grantee won't be disturbed by lawful claims of title) Warranty (promise to defend from reasonable claims of title and compensate for losses from superior claims) Future Assurances (promise to take reasonable steps to perfect defects in title)
Present Covenants (Deed)
Sex Only Creates Angry Enemies
Seisin (ownership)
right to Convey (had right as valid owner)
Against Encumbrances
Notice
Kit Is Reckless
Public Nuisance
Ur Health Service Provider will C U now
Unreasonable interference
Health, Safety, or Property rights
of Community
Unique damage to recover
Takings
Total taking
1) Physical appropriation = almost always a taking
2) Regulatory taking. Deprive all economic value? = Physical appropriation
Partial taking
Mere decrease in value not a taking if they leave economically viable use for property
Bears Eat Insects Bears Insects Eat
Balance Economic Impact (of regulation) with investment-backed expectations of claimant
Just compensation = fair market value at time of taking, including any improvements
No requirement to provide relocation costs
Use Variance
Hot Hawaiian Fiesta
Hardship w/o ordinance
Variance will not damage or harm neighborhood
Not at Fault or bad actor in request
Pre-Marital Agreements
Volunteers Unconsciously Disclose Whereabouts of 7 Convicted Rats
Voluntary not Unconscionable full Disclosure of assets and information to other side (unless Waiver) 7 days for outside Counsel Review
Transmutation
Consider Not Requiring Signature Declaring Canada Official
Consideration Not Required
Signed by party to be adversely affected
express Declaration of Change of Ownership
Improvements of CP by SP
DIP
right to reimbursement for contributions to….
Down payment
Improvements
Principal of mortgage
Education Reimbursement
Super Bowl 10, Cowboys Felt Embarrassed at Loss to Superior Steelers
community Substantially Benefitted (presumed after 10 years)
also received Community-Funded Education
Lessens need for Spousal Support
Trust Formation
SPIRiT BF
```
Settlor
Purpose
Intent
Res (property
I)
Trustee
Beneficiary
Formalities
~~~
Support Trust
HEMS
Health, Education, Maintenance, Support
Co-Trustee Liability
rANCID
Approve, participate, or conceal a breach of trust
Negligently enable a breach
fail to reasonably Correct breaches;
Improperly Delegate administration of trust
Formal Attested Will
2 Douglas William Crandell, I Love U
2 Disinterested Witnesses Writing Capacity (18, sound mind, know bounty) present testamentary Intent signed during testator's Lifetime Understanding that witnessing will
Holographic Will or Codicil
Interesting Card, Holographic Seal
Intent (for document to be a will)
Capacity (18 years old and sound mind)
Handwrite material provisions
Sign (witnesses not required)
Incorporation by Reference
Every Idiot Does Poorly
Document was in existence at time of will creation
Intended document to be incorporated
Defined in the will
Proven to be the document described
Undue Influence
In Every Oven Burns Fire
Influence Exerted (opportunity to do so)
Overpowered mind and free will of testator
But For influence there would have been a different disposition
Undue Influence Factors
Opportunity Supplies Perfectly Voluptuous Ukrainians
Opportunity to exert influence Susceptibility to influence due to age/physical condition beneficiary active in Procuring will Variance in expressed intentions will provisions are Unnatural
Presumption of Undue Influence (common law)
Cowardly Russians Attack Ukraine
Confidential Relationship
Active in helping draft/procure will
Unnatural result
California Statutory Undue Influence
Dogs Chase Cats Frequently
Donative transfer to
1) person who Drafted will
2) Care custodian of dependent adult (does not apply if had prior relationship before being custodian, e.g. child)
3) Fiduciary relationship
Pretermitted Child
Internet Service Provider
Intentional omission
Substitute transfer intended to replace provision in will
Provision of nearly all of estate to parent of omitted child
