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MEE > Elements II > Flashcards

Elements II Flashcards

1
Q

Partnership Definition

A
  • association of two or more persons
  • to carry on as co-owners
  • a for profit business

Key factors: profit sharing, loss sharing, right to participate in control

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2
Q

Agency Formation

A
  • consent from one person to another
  • that the other shall act on his behalf and subjec to his control
  • consent by agent to act

No writing required, no consideration required
Principal need contractual capacity, agent needs minimal capacity

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3
Q

Agent’s Duties to Principal

A

fiduciary duties

Duty of Care - act with reasonable care
Duty of Loyalty - undivided loyalty to principal - treating their interests first (no self dealing, competing); also includes duty obedience

Principal’s Remedies: contractual remedies, damages, or disgorgement of profits

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4
Q

Principal’s Duties to Agent

A

**not fiduciary*

Obligation to Indemnify
Compensation, Cooperation

Agent’s Remedies: contractual remedies, possessor lien

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5
Q

Actual Authority

A

authority created by words or conduct of the principal that would lead a reasonable person in the agent’s situation to believe they had authority

Effect: binds principal

Termination: reasonable time, change in circumstances, specific time or event, death, unilateral act, breach of fid. duty

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6
Q

Apparent Authority

A

authority created by principal’s word or conduct that would lead reasonable person in third party’s position to believe that the agent had authority to act

Effect: binds principal

Termination: TP does not have reasonable belief (?)

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7
Q

Effect of Principal’s Ratification

A

Principal bound if P knew all material facts and accepts the whole transaction

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8
Q

Principal’s Liability for Intentional Torts

A

P generally not liable unless:

  • authority or ratification
  • motivation of tort was to serve employer OR
  • torts flow from nature of job
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9
Q

General Partnership Management

A

Voting

  • generally 1 person 1 vote
  • majority for ordinary decisions
  • unanimous for extraordinary

Financial Rights
-profits shared equally by default, losses follow profits

Liability of Partnership
liable for K if GP actual or apparent authority
liable for tort if ordinary COB or actual or apparent authority

Liability of General Partners

  • each GP is jointly and severally liable for partnership obligations (tort or K)
  • personally liable for debts if partnership resources first exhausted
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10
Q

General Partner Duties

A

*owed to partners and to each other

duty of care - not engaged in grossly negligent or reckless conduct

duty of loyalty - no self dealing, not to compete or take on adverse interests to partnership

duty of disclosure - entitled to disclosures, no demand required

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11
Q

General Partnership - Partnership Property; Ownership Rights

A

Partnership Rights:

Presumed to be partnership property (GP has no rights) if:

  • purchased with partnership funds,
  • in partnership name

Ownership Rights:

  • management rights - cannot transfer
  • financial rights - freely transferable
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12
Q

General Partnership Dissociation, Dissolution

A

disassociation - withdrawal by partner. if wrongful (before end of term), liable for damages

  • express will/notice of withdrawal
  • expulsion
  • death
  • agreed upon event
  • bankruptcy

Effect: dissolution of partnership OR partnership continues and disassociated member bought out; AND disassociated partner still liable for two year unless public statement

*dissolution required if partner dissociates by express will in at will partnership

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13
Q

Distribution of Partnership Assets at Dissolution

A
  • creditors (internal and external)
  • reimburse partners for capital contributions
  • split losses and profits if present

until officially dissolved, apparent authority exists, partnership can be bound unless public statement of dissolution

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14
Q

Limited Partnership

A
  • association of two or more persons
  • to carry on as co-owners
  • a business for profit
  • with at least one general partner
  • and one limited partner

LPs owe no fiduciary duties of loyalty, care, etc.

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15
Q

Formation, LP

A
  • filing with SOS (naming registered agent for SOP, name and address for GP
  • proper name - must contain LP
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16
Q

Management, Financial Rights, LP

A
  • GP-managed (majority vote for ordinary decisions, unanimity for extraordinary decisions)
  • Financial rights based on contribution
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17
Q

FUNKY CARD

A

General partnership, partners not liable for debts of business

  • filing requirement
  • partners not personally liable
18
Q

Limited Liability Company

A

unincorporated business organization, hybird between corporation and partnership,

  • file paper work + operating agreement with SOS
  • member managed or manager managed

Member/Manager Duties: DOC + DOL to entity and other members/managers;

Benefits: no double taxing

19
Q

Separate Property

A

Separate

Effect: not subject to equitable distribution - goes to “owning” spouse

  • RP and PP acquired before marriage
  • property by gift, devise, descent
  • property acquired in exchange for separate property
  • income and appreciation of separate property
  • assets in retirement
  • property acquired after legal separation
  • personal pain and suffering damage awards

*EXCEPT where intertwined inextricably, intent indicated otherwise, or improvement by marital efforts

20
Q

Marital Property

A

Effect: subject to distribution (equitable division OR community approach - 1/2 marital property to each spouse - minority rule)

  • property acquired during marriage
  • earnings and property thereof (even if by sole earner)
  • pension (even if no contributions)
  • unvested employment benefits
21
Q

Factors for Equitable Distribution

A
  • duration of marriage
  • custody of minor children
  • each party’s contribution
  • age, education, earning capacity
  • needs
  • health
  • contribution as homemaker
  • economic fault (gambling, etc)

distribution is final!!!!
*title is not dispositive, this is not an “equal” distribution

22
Q

Requirements for Valid Marriage

A
  • Consent
  • Ceremony (third party authorized officiant)
  • No legal impediments (no close relationship, no bigamy)
  • License

*absence of license does not invalidate marriage

23
Q

Prenups

A

Formalities

  • in writing and signed
  • voluntary (not under fraud and duress)
  • full disclosure req. if unconscionable
24
Q

Common Law Marriage

A
  • consent to wed
  • actual co-habitation
  • publicly holding out as spouse
25
Q

Annulment

A
  • ending an invalid marriage (where one of requirements not met)

Effect: property returns to premarital status, child support awarded, marriage set aside

Void marriages if bigamy or close relationship –> no legal action required, TP can attack, can be valid after impediment removed

Voidable if duress, lack of capacity, no consent, or fraud as to essential elements of marriage –> valid until declared null, only attackable by parties can be remedied when

Voidable marriages

26
Q

Divorce, Jurisdiction

A
  • proper where one of the spouses is domiciled (present + intent to remain)
  • to effect property, court must have personal jurisdiction!!
27
Q

Alimony/Spousal Support

A

-permanent periodic support
specific amount until death/remarriage
can be increased, decreased with change in circumstances

  • lump sum
    specified amount or at one time
    no modification (treated as K), binding on payor’s estate

-rehabilitative support
specific period
x amount per month to finish college
can be awarded in conjunction with other alimony

  • reimbursement support
    spouse can be reimubrsed to extent they supported/contributed to other spouse and did not get benefits
    specified pd, lump sum, or installments
    no modification (treated as K), binding on estate
28
Q

Alimony, Key Considerations

A
  • needs of claimant spouse, ability of payor spouse to pay
29
Q

Separation agreement

A
  • consideration required
  • can waive alimony or property division
  • can detail custody/child support (but ct not bound)
30
Q

Child Support, Key Considerations

A
  • parents owe a duty –> balance ability to pay and needs of child

TEST to modify: substantial and continuing change in circumstances affecting needs of child or ability to pay

31
Q

Child Support Jurisdiction

A

original jurisdiction
-where petition filed under UIFSA or another state if objection to first state within answer time AND second state is home state

jurisdiction to enforce

  • where award issued or another state by direct enforcement
  • can be enforced through civil or criminal contempt action, taking tax refund, revoking license

jurisdiction to modify - continuing exclusive jurisdiction
-where original award filed UNLESS neither party resides there or parties consent otherwise

32
Q

Child Custody Jurisdiction

A

original jurisdiction - UCCJEA
- home state = where child lived with parent for at least 6 months OR proper where child ‘s home state was but child absent and parent continues to live there

-issuing state has continuing exclusive jd unless no parent/child resides in state or child no longer has significant connection

Temporary Emergency
jd okay if –> child physically present, child abandoned, poor necessary to protect child

33
Q

Best interest of the child

A
  • child’s wishes - (under 8 not determinative, over 12 great weight)
  • parent’s wishes
  • child’s adjustment (schooling, home life, etc)
  • interrelationship with siblings, parents, others
  • mental/physical health of all parties
34
Q

Types of Custody (legal and physical)

A

Joint
- encouraged, only awarded if parties agree

Sole

  • strong evidence
  • other spouse likely to have visitation unless not in the BIOC

Custody to Non-parent
-rare; non parent has the burden of showing unfitness of parent or harm to child

Visitation
-absolute denial is rare for parents, special weights given to parents because of constitutional rights

35
Q

Custody Modifications

A

Require substantial and material changes in circumstances affecting the needs of the child

Relocation - notice and opp to be heard
Ct will grant if in BIOB and not intended to thwart relationship of other parent

36
Q

Termination of Parental Rights

A

voluntary termination by adoption

involuntary termination where taken because child’s well-being endangered

37
Q

PMSI - purchase money security interest

A

two types: financier financed, seller financed

seller financed

  • credit sale (buyer pays less than full price) AND
  • creditor retains interest in the collateral

financier financed

  • loan to purchase collateral
  • loan actually used to purchase collateral
  • creditor takes security interest in collateral
38
Q

Attachment

A

defined - creation of security interest, creates creditor’s rights as to debtor

(1) security agreement (usually a writing signed by the debtor that describes collateral and shows intent to create a security interest)
(2) both parties give value
(3) debtor has right to collateral being offered up

39
Q

Perfection

A

defined - creates creditor’s interest as to third parties/other debtors

Attachment PLUS

(1) PMSI in consumer goods - automatically perfected
(2) possession - DNA to intangible goods, only way to perfect cash

(3) control
- secured party becoming co-owner
- automatic control by bank maintaining account
- control agreement

(4) notation of lien on certificate of title
-only way to perfect title for trucks/car UNLESS held for inventory then 1 filing
OR

(5) UCC-1 financing statement

40
Q

Financial Statement

A

Requirements:

(1) debtor’s - name of unexpired driver’s license in jd. if mistake valid as long as not seriously misleading
(2) description reasonably identifying collateral - supergeneric, A9 categories, or normal vocab
(3) secured parties’ name
(4) financing statement (??????)
(5) authorized by debtor - does not have to be signed, ipso facto auth if debtor signed security agreement
- valid for five years, filed with Sec of State

Renewed: by filing UCC-3 continuation statement in six months, renews for 5 years

41
Q

Secured transacrtion

A

transaction intended to create security interest in PP or property

Created through credit transaction + agreement that creates lien

42
Q

security interest

A

contingent interest in collateral that creditor has over property

security agreement =K that creates the security interest

MEE (2 decks)

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