final study day review MEE rules Flashcards
Under the respondeat superior principle, an employer is liable for the tortious acts of its employee if those acts were performed
within the scope of the employee’s employment.
The general rule is that an employer is not liable for the independent acts of the independent contractor.
The test of whether a person is an independent contractor or employee:
factors considered:
The test of whether a person is an employee depends on whether the employer controls the manner and means by which the task is accomplished. If the employer does, the person is likely an employee.
If the employer does not control manner or means but only designates the task to be completed, the person is likely an independent contractor.
The court considers the following factors:
A number of factors are relevant,
- the level of skill required to perform the work,
- who supplies the tools
- the duration of the relationship, and
- whether the work is part of the employer’s regular business.
- whether the person is paid in increments or regularly
- whether the employer withholds taxes and social security
No single factor is determinative.
If an employee, Whether an employee was acting within the scope of his employment is generally a question of fact.
An employee’s conduct is within the scope of his employment if
(1) it is of the kind that the employee is employed to perform;
(2) it occurs substantially within the authorized time and space limits; and
(3) it is motivated to serve the interests of the employer
If the agent acting with authority and the principal’s identity is disclosed to the third party, who is liable on the K?
What if the principal’s identity is not disclosed or only partially disclosed?
An agent acting with authority is not liable on the contract if the principal’s identity is disclosed to the third party, but the principal is.
However, the agent is liable if the principal’s identity is not disclosed or only partially disclosed, unless the contract provides otherwise.
Without actual or apparent authority, the agent alone is liable on the contract unless the principal
becomes liable by subsequently ratifying the contract.
Without actual or apparent authority, the agent alone is liable on the contract unless the principal
becomes liable by subsequently ratifying the contract.
explain actual authority
Actual authority exists when the principal by written or spoken words or other conduct “causes the agent to believe that the principal desires . . . [the agent] to act on the principal’s account.” Restatement (Second) of Agency § 26. While rephrased, the Third Restatement is similar and provides that “[an] agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal’s manifestations to the agent, that the principal wishes the agent so to act.” Restatement (Third) of Agency § 2.01.
explain apparent authority
Apparent authority is created with respect to a third person when “by written or spoken words or any other conduct” the principal causes the third person “to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.”
[a]pparent authority . . . is created by a person’s manifestation that another has authority to act with legal consequences for the person who makes the manifestation, when a third person reasonably believes the actor to be authorized and the belief is traceable to the manifestation.” Restatement (Third) of Agency § 3.03.
employers vicarious liability for torts committed by an employee
Generally, an employer is subject to vicarious liability for torts committed by an employee “acting within the scope of employment.”
Vicarious liability of a principal for the torts of an independent-contractor agent may also arise in certain special circumstances
: when the independent contractor injures an invitee to the principal’s property
when the independent contractor is involved in an ultra-hazardous activity, such as blasting with explosives
or when the principal has held out the independent contractor to the injured party as an employee
duties owed to others in a general partnership
A general partner owes the partnership and his partners the duty ofloyalty, care, and disclosure. Under the duty of loyalty, a partner owes a duty to the partnership and all of his partners not to compete with the partnership, among other things. Additionally, partners have an obligation to report and disclose any possible opportunities that might benefit the partnership of which they have gained knowledge of.
dissociation from a partnership at will and dissolution causes
A partnership at will may be dissolved upon the disassociation of a partner. Once a partner disassociates, the partnership enters into what is known as a winding up phase that requires that the partnership’s business come to an end by paying any owed debts, or taking care of any last business required to end the partnership. The non-dissociating partner of a partnership at will is not able to continue the existence of the partnership without the agreement of the disassociating partner and upon the partner disassociating, the partnership will enter into the winding up phase. However, while sometimes the partnership may continue to exist, if the partner does not wrongfully withdraw from the partnership and within ninety days of his withdrawal, the partners decide to continue the partnership, the partnership may continue to exist.
State laws that discriminate against out-of-state commerce in favor of in-state commerce—either on their face or in practical effect—are subject to?
even if not discriminatory, state laws that effect interstate commerce can be invalid if the burden is?
strict scrutiny and thus a nearly per se rule of invalidity.
Even if not discriminatory, state laws that affect interstate commerce can also be invalidated if the burden on interstate commerce is clearly excessive in relation to the putative in-state benefits.
T or F In most jurisdictions, voluntary withdrawal or abandonment is not a defense to the crime of attempt once the actor’s conduct has gone beyond mere preparation.
what about in a minority jurisdiction?
True
A minority of jurisdictions take the view that the abandonment of an attempt before the crime is completed is an affirmative defense. However, the abandonment must be utterly voluntary
