IV. Relationship Between Partners & Third Parties: Use Agency Laws

Question 1

Contracts

Answer 1

Paternship is principal, partner is agent

Look for:

1. actual authority
2. apparent authority
3. Ratification or Adoption

Question 2

Contracts: Actual Authority

Answer 2

• May be created by
  
  • paretnship AGREEMENT
  • a majority VOTE of the partners (even if not in agreement)
  • or the STATUE
• Statute makes every partner an agent for carrying on business in the usual way
  
  • can be negated by the partners–does not need to be in bylaws–can just be the partners voting no

Question 3

Contracts: Apparent Authority

Answer 3

Look at a partner’s TITLE & prior CONDUCT as would be perceived by a reasonable 3P

Question 4

Contracts: Ratification or Adoption

Answer 4

if no authority, look to see how they act

Question 5

REAL property

Answer 5

• if partner sells real property WIHTOUT AUTHORITY, the partnership can get it back from the INITIAL TRANSFEREE (should have checked to see who had authority
  
  • will not be able to get it back from a SUBSEQUENT BONA FIDE PURCHASER
    *

Question 6

Partner’s Tort

Answer 6

• WHEN PARTNER: only question is whether it was commmited WIHTIN THE ORDINARY COURSE OF PARTNERSHIP’S BUSINESS
• PARTNERSHIP EMPLOYEE: use regular tort analysis for a tort committed by a partnership employee (servant, scope of employement)

Question 7

Partner’s LIability for Partnership Obligations

Answer 7

Partnership is liable; Is the partner liable?

• PARTNER’S ARE JOINT AND SEVERAL LIABILITY FOR PARTNERSHIP OBLIGATIONS
  
  • valid in TORT as long as you’re served with process
  • valid in CONTRACT as long as you’re served with process
  • no obligation to recover from the partnership first
    *

Question 8

LIABILITY EXCEPTION FOR A LIMITED LIABILITY PARTNERSHIP (LLP):

Answer 8

*CHECK THIS LLP like GP except limits liability

• Partners are not liable for partnership obligations except their own torts and contracts

WHo is LIable

• YOUR PARTNER: Liable for the tort they committed
• FIRM: LIable
• YOU: not liable for the tort of others
• AS PLLP, who is liable for the firm’s breach of contract: ONLY THE FIRM

Question 9

Form an LLP/PLLP

Answer 9

File: an election with the superior court clerk of any county where the LLP has an office, and pay a fee

Name: must include the words LLP or the initals LLP

Question 10

WHy would anyone choose a General Parntership?

Answer 10

only reason you would is because it’s a bar exam