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agency and partnership > can I get a wha wha > Flashcards

can I get a wha wha Flashcards

1
Q

Respondeat Superior/ Vicarious Liability

A

two aprt test: 1. principal-agent relationship and 2. tort was committed bt tthe agent wihtin tthe scope of that relationship

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2
Q

The Prcipal agent relationship

A

Assent, benefit, control

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3
Q

Assent

A

informal agreement between principal who has capacity and agent

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4
Q

benefit

A

agents confuct must be for principal’s benefit

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5
Q

Control

A

principal musth ave right to control the agent

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6
Q

sub-agent: will principal be civariously liable?

A

only if there is assent, benefit and control between principal and sub agent tort-feasor; principal typically does not assent and does not have right to control so usually no VL

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7
Q

Borrowed agent: will principa who borrows another principals aetn be VL for borrowed agent’s tort?

A

only if there is assent, benefit, control between borrowing principal and borrowed agent

typicallt, no right to control so no VL

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8
Q

Agents v. IC

A

distinction: no right to control an IC because no power to supervise
- no CL for torts

Exceptions:

1) inherently dangerous activities
2) estoppel: if you hold out IC with appearanceo f afency you will be estopped form denying liability

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9
Q

Scope of Principal-Agent Relationship Factors

A
  • of the kind hired to perform? in job description?
  • frolic or detour? Frolic = a new and independent journey. Detour = mere departure from assigned task
  • intend to benefir principal? if even in part, then in scope
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10
Q

Intentional torts and exceptions

A

not liable

exceptions:

  1. authorized by principal
  2. conduct was natrual from nature of employment
  3. motivated by desire to serve principal
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11
Q

Liability of Principal for Contracts entered by Agents

A

TesT: Is liable for contracts entered into by agent only id the principal authorized the afent to enter the contract

  • four types of authorrity: actual express, actual implied, apparent, ratification
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12
Q

actual express

A
  • used words to express authority
  • can be oral and private
  • narrowly construed

Exception:
if contract itself msust be inwritign then express authority must also be in writing ie. land sale

Revoked by:

  1. unilateral act od either the principal or the afent or
  2. death or incapacirt of the principal

Exception to revocation : if principal giced agent durable power of authority to written expression for clear survival of death.

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13
Q

Actual Implied Authority

A

Auhtority which gives auhtority through conduct or circumstance: necessity, custom, prior acquiesence by principal

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14
Q

Necessity

A

implied auhtority to do all the tasks which are necessary to accomplish expressly auhtoprized task

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15
Q

Custiom

A

implied auhthorit to do all tasks which by ciustom arep erformed by persons with agents title or position

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16
Q

Prior Acquiescence by principal

A

implied authority to do all the tasks which afent leaves to authroized by prior acquiesence
- prior silence to raks counts

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17
Q

Apparent Authority

A

Two part tesT: 1. Principal cloaked agent wiht appearanceof authority and 2. 3P rasonably relies on appearance of authority

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18
Q

Ratificaiton

A

Authority can be granted after the L has been entered if:
1. prinicpal has knowledge of all material facts regarding the K and
2, Principa laccepts its benefits
3. Exception: cannot alter terms of the K

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19
Q

Rules ofLiabilty on the K

A

Principal is liable on authorized K and therfore as a rule authorized adent is not liable on authorized K

Exception: the undisclosed principal - if principal is partially discles or undisclosed , authorized afent may nonetheless be liable at the election of 3p (3P chooses who to sue!)

20
Q

Duties owed to Principal and remedies

A
  1. duty of care
  2. duty to obey instructions that are reaosnable
  3. duty of loyalty

Princpal’s remedu: may recover losses caused by breach and alsoe dislodge profits made by breaching agent

21
Q

Duty of Loyalty

A

never do any of the following:
1. self dealing - agent cnanot receive benefit to detrimen of principal

  1. usurping the principal’s opportunity
  2. secret profits - making a profir at the principal’s expense without disclosure
22
Q

Partnership formation and Defijition

A

Formaiton: no formalities
Definition: a GP us an association of 2 or more persons who are carrying on as co ownderso f a buisiness for profit

Sharing of proits is a key factor:
-contribution of movney capitol or sercices creates a peresumption that GP exists by salart doesn’t; have to have share in profit

23
Q

Liabilitues of GP to 3P

A
  1. aprteners are afents of the partnership for apparently carryong on usual partnership business
  2. therefore, the fenetal partnership is liable for each partner’s torts in the scope of partnership business and for eacgh partner’s authroized K
24
Q

GP liabilty for debts

incoming partner?
Dissociating partner?

A

Each General Partner is personally liable dor al lDebts of the Partnership and for each co-partnerts torts

  1. incoming parnet’s not liable for prior debts but any monet brought i nby new partner can be used to satisfy those debts
  2. dissosicating partners retain liabolity on all future debts until actual norice of dissociation is fgiven to credityos or until 90 days after filing notice of disocciation to the state
25
Q

GP liabilirt by estoppel

A

ine who represents to a 3P that a general partnership exits wiill be liable as if a general partnership exists

26
Q

Rights and Liabilirties between Genreal PArtners

A

Ficdicuaries of each other and the parntership

  1. therefore, general partners owe to each other and the partnership: dirty of loyalty, which means that feneral partners may bever enfage in self- dealing, usurp, or secret profit
  2. action for accountin cover losses caused by breach and dislodgedp roits of parner as well
27
Q

Partner’s rights in partnerhsip property and liquidity

A

loo kto whose money was sued to buy property. if personal money, they personal property, If partnership money, belongs to partnership

28
Q

Share of profits:

A

Personal to parties so they can be transfered by individual parties to 3P

29
Q

share in management

A

asset only owned by partnership itself and thereforem ay bot be transferredb y individual partners

30
Q

sp[ecidic partnership assets

A

such as land, leases and equipment owned buy partnership itslef and therefore cannot be transferred by party w/o opartnership conset

31
Q

Maangement of GP

A

Absent an agreement, entitlred to equal control

Ordinary matters: majority
Fundamental matters: need unanimosus

32
Q

GP Salary

A

Absent an agreement, partners get NO SALARY

exception: partners receive compensation for helping to wind up partnership’s business

33
Q

Partner’s share of prifits and losses

A

absent an afreement, profits shared equallt and losses shared like profits

34
Q

GP Dissolition

A

absence of agreement that sets forth events of disspoltuion, a GP dissolves wupon notice of express will of any one to partner partner to dissociate

35
Q

Real end of partnership

A

Termination

36
Q

Winding up

A

period between dissolution and termination in which remaining partners liquidate partnerships assets to saitsfy creditors

37
Q

Partnerships liability upon dissolution

A

old business: the partnerhsiup and therefore its indicudieal genrealy partners retain liabilirt on all reansaction to whind up by satisfying creditors that existes

new businesS: partnership and individual general partners retain liabilirt on bran new transactions during windingu p until nnotice of dissolutioin given to creditors or until 90 days after filinf statelment of dissolution

38
Q

Priority of Distribution at winf up

A

Each level of priority must be fully satisfied before beginning the next level

  1. all creditors including inside partners
  2. all capital contributions paid into partnership by the partners - msut get full payment even if it cuts into profit
  3. profits, if any

Rule: each partner must be repaid his or her loand and capital contributions plus that partner’s share of any profits minus that partner’s share of any losses

39
Q

Limited Partnership

A

define: PArtnerhsip with at least one general partner and at lease one limited partner
formation: file limited partnership certificare wiht all names of general partners

40
Q

LP: Liability and control

A

general partners: liable for all LP onligation. still have right to manage business

Limited partners: limited liability.not liable for debts and oblifations

  • control: most states -limited partners maty not manage
  • newly revised uniform limited partnership act: limited partners may manage business without forfeiting limitedp partner statues/liability
41
Q

Registered Limited Liability Partnership

A

formation: filing statemetn of qualificaiton plus annual reports
liabilities: no partner is liable for debts and oblifations; not even general partners!

42
Q

Limited Liabilirt Companies

A

Defined: hybrif beween a corp and a partnership in which oweners have same rights and limitd liabiliries of shareoholders of corp and partnership taxation (partnerhsip taxation is mroe friendly than corp tax)

Formation: aMUST articles of organization and MAY adopt operating statement

Control: member may manage biz or delegate control to team of management that alike a BOD in corp

Limited liquidity: membership interest may not be transfered without unanimos consent of members or authorized by opearting agreement

Limited life: dissolve with unanimous consemnt of members or as in operating agreement

43
Q

LP: Liability and control

A

general partners: liable for all LP onligation. still have right to manage business

Limited partners: limited liability.not liable for debts and oblifations

  • control: most states -limited partners maty not manage
  • newly revised uniform limited partnership act: limited partners may manage business without forfeiting limitedp partner statues/liability
44
Q

Registered Limited Liability Partnership

A

formation: filing statemetn of qualificaiton plus annual reports
liabilities: no partner is liable for debts and oblifations; not even general partners!

45
Q

Limited Liabilirt Companies

A

Defined: hybrif beween a corp and a partnership in which oweners have same rights and limitd liabiliries of shareoholders of corp and partnership taxation (partnerhsip taxation is mroe friendly than corp tax)

Formation: aMUST articles of organization and MAY adopt operating statement

Control: member may manage biz or delegate control to team of management that alike a BOD in corp

Limited liquidity: membership interest may not be transfered without unanimos consent of members or authorized by opearting agreement

Limited life: dissolve with unanimous consemnt of members or as in operating agreement

agency and partnership (1 decks)

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