mee_subjects_myube_copy_20190714080713 Flashcards
What type of business entity is an association entered into for profit, contemplating a single transaction or related series of transactions?e.g. A & E Partners, an association formed to create a building, with the association to dissolve upon the completion of the project.
A joint venture. A partnership (general or limited) would require the contemplation (intent) of carrying on an ongoing business relationship.
A general partnership may convert to a registered limited liability partnership by…
a vote of the partners with a majority share of the interests in the current profits of the general partnership.Note: a limited partnership (LP) CANNOT become an LLP
Under RUPA, the result of a partner’s bankruptcy, or other financial insolvency in a partnership at will is…
…dissociation of the partner from the partnership.In a partnership at will, dissociation of a bankrupt partner does not require dissolution of the partnership. The partners may elect to continue the partnership, but they must buy out the dissociated partner’s interest in the partnership at a price equal to or greater than the liquidation value of the partnership’s assets or the value of the partnership’s assets based on a sale of the entire business as a going concern.
Under RUPA, the result of a partner’s bankruptcy, or other financial insolvency in a partnership for a definite term or particular undertaking is…
…dissociation of the partner from the partnership/firm, and the partnership must be dissolved within 90 days of the dissociation.
de jure vs de facto corporations
A de jure corporation is one which has been organized in compliance with the mandatory statutory requirements of the state of incorporation.When a corporation does not meet the requirements of a de jure corporation, it may be considered a de facto corporation if the incorporators made a good-faith, colorable attempt to comply with the incorporation statute and the corporate principals acted in good faith as if they were a corporation.
Liability of a promoter for contracts from before a corporation exists
As a general rule, a promoter is personally liable for any contract he entered into on behalf of the corporation that is not yet in existence, whether the contract is made in his name or in the corporation’s name, unless the promoter specifically disclaimed personal responsibility in the contract, or the promoter is released from liability after the corporation is formed. The later occurs if, after incorporation, the corporation accepts such a contract either expressly (by a resolution of the board of directors) or impliedly (by, for example, accepting the benefits of the contract).
factors considered when determining whether an opportunity is, in fact, a business opportunity (for the purpose of breach of fiduciary duty)
Such factors are: whether the business constituting the opportunity is closely related to that of the corporation, whether the board had expressed an interest in acquiring that type of business, whether the director or officer became aware of the opportunity while acting in her capacity as a director or officer, and whether she used any corporate funds or facilities in discovering or developing the opportunity.
Describe the duty to refrain from taking business opportunities from the corporation
Part of the duty of loyalty, specifically, one may not take a business opportunity from the corporation for one’s own benefit unless the corporation is first given the chance to pursue the opportunity. However, if the corporation is given the opportunity and declines to do so, one is free to pursue the opportunity for her own personal benefit.
Fiduciary duties to corporations/LLCs (2)
both the duty of care and the duty of loyalty
short-form merger
a parent company owning at least 90 percent of the outstanding shares of each class of its subsidiary may merge the subsidiary into itself. This, unlike most mergers, does not require the approval of shareholders of either the parent or subsidiary. Only the board of directors of the parent company needs to approve the merger.
What counts as Fundamental changes, requiring SH approval?
mergers, consolidations, dissolutions, sale of all assets, and amendment of the articles.While the board of directors cannot decide on a fundamental change without the shareholders, it can pass a resolution depending that shareholders act in a particular way.
Determining whether to bring derivative or direct suit
Look at whether the suit is on behalf of the corporation or if it involves the individual shareholder’s rights against the corporation (also look whether harm was to SHs or to the corp).The derivative suit (an equitable action) does not have to be brought by all shareholders collectively; rather, it may be commenced by one individual shareholder on behalf of the corporation
If stock is held jointly by more than one person, a proxy executed by any one of them…
…is valid unless one of the other co-owners provides timely written notice to the corporation that the proxy is invalid.
to make a valid codicil it must
A valid codicil must meet all of the requirements/formalities for a valid will.It can be attested (signed by two witnesses) or holographic (with material sections in testator’s own handwriting)
A presumption of undue influence may arise…
in situations where there is a fiduciary relationship between the beneficiary and the testator; the testator is dependent on the beneficiary who is playing the dominant role; the testator reposed trust in the beneficiary; and the beneficiary was instrumental in preparing the will.
can a will be attested by an interested witness?
yes, under the UPC
what is a self- proving will?
Under the Uniform Probate Code a self- proving will is one that is signed and witnessed, or subsequently acknowledged, before an officer authorized to administer oaths.
To have a valid contract to make a will that is extrinsic to the will itself, the testator must…
…have signed a writing establishing the existence and essential terms of the contract.
Causes of action for direct suits:
i) compel payment of dividendsii) enforce right to inspect recordsiii) protect preemptive rightsiv) enforce right to votev) recover for breach of shareholders’ agreement, preincorporation agreement, or a contract w/a shareholder
Three meanings of proxy
1) Grant of authority by a shareholder to another person to vote their stock2) the instrument granting that authority3) the agent to whom that authority is granted (also called the proxy holder)
Requirements for a proxy
Must be in writing, executed by the shareholder, and typically valid for 11 months. It is typically revocable unless coupled with an interest, if it states otherwise, or if the SH takes actions indicating revocation (i.e. writing delivered to corp, showing up to SH meeting)
3 rights shareholders typically have
1) Dividend rights (at board’s discretion)2) Liquidation rights3) Voting rights
white knight
a more acceptable bidder which a corporation finds in the case of a tender offer or hostile takeover by a less acceptable bidder
poison pill
creating classes of stock that increase in rights if someone acquires more than a specified percentage of shares, making acquisition more expensive to the bidder
Are shares of stock a general or specific bequest?
Could be either. A possessive pronoun generally indicated specific (“my fifty shares of stock X”), whereas otherwise if could be general (“fifty shares of stock X”).Turns on intent, but this is a way to determine. Implications for ademption.
HYPO: Tara leaves “my car to my niece Sarah.” When Tara wrote her will, she owned a 1967 Firebird. Tara subsequently gave the Firebird to Sarah and purchased a 1998 Honda minivan, which she still owned at the time of her death. What result?
Sarah would get both cars. There would be no ademption by satisfaction b/c that only applies to general bequests and this is specific; and there would be no ademption by satisfaction because there is no contemporaneous writing by T stating so.
pretermitted child
a child born to a testator after the testator executed a will. If a testator’s after-born child is not provided for in the testator’s will, and the testator provided for one or more of his then-living children, the pretermitted child may claim a share of the estate unless it appears from the will that the omission was intentional. The other children’s shares will abate ratably to accommodate the afterborn child’s share.
Under the UPC, when an intestate decedent is not survived by a spouse, the descendants take/divide the entire estate…
…per capita by generation.
Under the UPC’s provisions on intestate succession, when the decedent is survived by both a spouse and one or more descendants who are not also the descendants of the surviving spouse…
…the surviving spouse’s share is the first $150,000.00 plus one-half of the intestate estate. The remainder is distributed equally among the descendants.
requirements for the creation of a valid trust (6)
(1) settlor w/requisite capacity, expresses a present intent to create a trust;(2) delivery of specific trust property;(3) an ascertainable beneficiary;(4) active duties imposed on the trustee;(5) a proper trust purpose; and(6) a trustee.
Totten trust
Also known as a “payable on death account,” a Totten trust is a form of trust created where one party (the settlor or depositor) places money in a bank account or security with instructions that upon the settlor’s death, the funds in the account will pass to a named beneficiary. Typically, it’s an account in the name of the depositor, “in trust for” the beneficiary. Prior to the depositor’s death, the trust account is completely revocable and the depositor has no fiduciary duty to the beneficiary.
spendthrift trust
A spendthrift trust is one that prevents the beneficiary from voluntarily transferring her interest in the trust and creditors from reaching that interest.
Merger (trusts)
Merger occurs when the sole trustee becomes the sole beneficiary. Thus, in order for a trust to be terminated due to merger, there must be only one beneficiary and one trustee, and they must be the same person.
Typical situations in which resulting trusts occur are where… (5)
(1) the trust has no beneficiaries (e.g., none were ever named, they have died, they cannot be located or identified, or they disclaim their trust interests); (2) no provision has been made for a portion of the trust property; (3) a trust designated for a specific purpose is invalid, insufficient, or excessive; (4) the trust purpose was never described or is unclear; or (5) carrying out the material purposes of the trust has become impractical or illegal.
constructive trust
A constructive trust is an equitable device employed by courts, despite the absence of any intention of the parties to create a trust, whereby a trust is erected in favor of one person to redress wrongdoing or prevent the unjust enrichment on another. The purpose of a constructive trust is to require the holder of property to divest himself of it and transfer it to the person entitled to that asset.
“gift over” provision
A “gift over” provision provides that in the event that the settlor’s stated charitable purpose cannot be accomplished, the trust will terminate or revert as provided. In contrast, the cy pres doctrine applies in cases where it becomes impossible or illegal to carry out the settlor’s specific charitable purpose, such as where a designated charitable beneficiary is no longer in existence. The cy pres doctrine applies only when there is no “gift over” provision and no substitute charity named
Elements required to create a valid charitable trust: (4)
(1) it has a charitable purpose,(2) the beneficiaries are indefinite,(3) there is perpetual existence, and(4) the cy pres doctrine can be applied as needed (when there is a general charitable intent)
choice of law for movable property
traditionally the situs at the time of transaction, but security interests in movable etc governed by UCC default rule is that of a state bearing an “appropriate relation” to the transaction.
choice of law for intangibles
law of situs where the instrument representing it, or otherwise the place of transfer, or contracts choice of law.
choice of law for real property
also for liens and mortgages (but not the note), governed by law of the situs
choice of law substance/procedure
Procedure is governed by the law of the forum, whereas substance is governed by the forum’s choice of law rules. Whether something is substantive/procedural is determined according to the forum’s law.
renvoi
idea that all the law of the state whose law applies should be applied, including choice of law. The 2nd Rest and most states of rejected this b/c of its potential circularity.
most important considerations for forum non conveniens (2)
1) P’s choice of forum should not be disturbed except for weighty reasons;2) the action should not be dismissed unless a suitable alternative forum is available to P.Other considerations: access to evidence, premiuses, witnesses, enforceability of judgement, administrative issues, etc
basic requirements for a security agreement (4)
The security agreement must be:(1) in writing;(2) contain a “granting” clause (stating it is creating a security interest);(3) contain a description that “reasonably described” the collateral (not supergeneric); and(4) be authenticated by the debtor.
requirements in order for a security interest to attach (3)
(1) properly created/authenticated security agreement(2) secured party must give value, and(3) debtor must have rights to the collateralThese can occur in any order, and attachment happens once all 3 have taken place.
Can security agreements validly cover after-acquired consumer goods?
yes, but the security agreement can only attach if the debtor acquires rights in the goods within 10 days of the secured party giving value.
Under UCC Article 9, which law governs perfection and the effect of perfection?
The law of the jurisdiction where the debtor is located.The law of the jurisdiction where the collateral is located governs only when the dispute involves a possessory security interest (in real property, or an interest in fixtures/timber).
Perfection of an interest, 4 ways
(1) filing,(2) taking possession of the collateral,(3) taking control of the collateral (i.e. bank account), or(4) automatically (i.e. PMSI in consumer goods, identifiable cash proceeds)
how long does perfection last for?
perfection is automatic as soon as the security interest attaches, and remains effective permanently.
timeline for automatic perfection
Most of the time, when perfection is automatic and temporary, is lasts for a period of 20 days after attachment. However, when a PMSI is involved and the collateral is consumer goods, perfection is automatic and permanent as soon as the security interest attaches
PMSI grace period
Where a financing statement is filed within 20 days after the debtor receives delivery of the collateral, perfection “relates back” to the date the security interest attached upon the debtor’s receipt of the collateral, which is good against claims arising in the meantime from (only) intervening buyers, lessees, or lien creditors.Fixtures: super priority if perfected before or within 20 days of when it became a fixture.Exception: no grace period for PMSI in inventory (must perfect upon receipt), plus must inform debtor of PMSI.
“first in time, first in right.”
The most basic rule of priorities.Assuming parties are on equal footing (i.e., both hold the same type of interest in the property) and both have perfected security interests, the first to perfect takes priority.
“second in time, first in right” priority
A perfected PMSI will prevail over a conflicting security interest, if the PMSI is perfected when the debtor receives possession of the collateral or within 20 days thereafter. (Note, extra steps are required where the collateral is inventory)
PMSI priority rule for inventory
When collatera is inventory, the PMSI holder can perfect his interest and prevail over the non-PMSI holder (even one who has perfected his interest) if the PMSI holder perfects his interest before the debtor receives possession of the collateral, and sends an authenticated notification to the other creditor stating that he expects to take a PMSI in the debtor’s collateral.
cash proceeds of the collection or distribution of the collateral are to be distributed in the following order: (4)
1) reasonable expenses/fees of collection and enforcement;2) satisfaction of indebtedness to secured party;3) satisfaction of obligations secured by any subordinate security interestd or other subordinate lien on the collateral, IF they sent the secured party an authenticated demand before disposal;4) and the remainder to the debtor.5) If debts are not covered, secured parties can obtain a deficiency judgment
Perfection of security interest in a deposit account
deposit accounts may only be perfected by control. A secured party has control of a deposit account if the secured party is the bank with which the deposit account is maintained (can be like automatic perfection)
between perfected interests, which prevails?
Frist to file OR perfect.The security with the earliest time of filing or perfection, which has continued without interruption, will prevail
among unperfected interests, which prevails?
the first to attach
perfecting a security interest in money as collateral requires
possession (perfection by filing does not work)
perfection by possession only applies to:
i) negotiable documentsii) goodsiii) instrumentsiv) moneyv) tangible chattel paper
a filed financing statement is effective for:
five years from date of filing.A continuation statement must be filed within six months before the five-year period expires, extends the original FS for another five-year term from prior date of expiration.FS will lapse if it expires without a continuation statement being filed, and SI becomes unperfected.
when is a secured party not entitled to deficiency payment
when they underlying transaction is:1) a sale of accounts,2) chattel paper, 3) payment intangibles, or4) promissory note
What is Attachment?
Attachment is the process by which the security interest is created. A security interest is created by a contract between the debtor and the secured party
what is Perfection?
Perfection establishes a secured party’s rights in the collateral against third parties.In order for a security interest to be perfected, requires: attachment + perfection.
is marital fault/misconduct considered in alimony awards?
It may be in some jurisdictions, but the UMDA requires that alimony be determined “without regard to marital misconduct,” and awarded only where a party actually needs it.
Jurisdiction under UCCJEA
According to the Uniform Child Custody Jurisdiction and Enforcement Act, a state may take jurisdiction of a child welfare case if the child’s home state declines jurisdiction or there is no “home state.” The child and at least one parent must also have a significant connection to the state, and there must be significant evidence in the state.
formation of an LP or LLP
Both must comply w/statutory requirementLP:1) certificate of LP signed by all named general partners, filed w/secretary of state’s office2) name of the LP must say “limited partnership” or an abbreviation (L.P. or LP)LLP1) Formed by filing w/secretary of state’s office certificate of registration signed by at least one person (usually must pay a filing fee)2) name of the LLP must say “limited liability partnership” or an abbreviation (R.L.L.P., L.L.P., LP, etc.)
An act of a partner that is not apparently for carrying on in the ordinary course of business of the partnership…
… does not bind the partnership unless authorized by theother partners.
Resolving disputes between General Partners:
Acts within ordinary course of business: majority voteActs outside ordinary course of business: unanimous consent
Duties of Limited Partners
Duties of good faith and fair dealing (less demanding than duties of care and loyalty)
Liability of limited partners in an LP
Not personally liable (except the partner’s capital contribution) for debts of the LP, even if the limited partner participated in the management
Dissociation of a partner
1) wrongfully dissociates of a partner from a definite term p’ship: automatic dissolution in 90 days unlessmajority of partners vote to continue2) sole general partner in an LP dissociates: automatic dissolution in 90 days unless majority of limited partners vote to continue, and appoint a general partner3) one of multiple general partners dissociates from an LP: no automatic dissolution unless majority of all partners (general and limited) vote to dissolve4) sole limited partner dissociates: automatic dissolution unless a limited partner is admitted within 90 days
Partnership’s liability on post-dissolution contracts:
liable if the transaction would have bound the partnership before dissolution and the other party did not have notice of the dissolution
Partnership’s assets are distributed in this order:
First: pay creditors (including partners who are creditors); partners are jointly and severally liable forany outstanding debt (may seek contribution fromother partners)Second: reimburse partners for their capital contributionsThird: pay the balance to partners in accordance with their share of profits
Requires capacity for principal and agent
Principal: Contractual capacity (capacity to entertransactions, control one’s business affairs)Agent: Minimum mental capacity (gets contractual capacity from principal)
agent’s liability on a contracted entered into for principal
Fully Disclosed Principals: agent is not liable on contractPartially Disclosed (or Undisclosed) Principal: agent is liable on contract
Apparent authority
Apparent authority arises from the principal’s representations to a third party, where theprincipal’s behavior leads the third party to believe that the agent is acting with the principal’s authority. Thus, even if a partner lacks actual authority, a limited liabilitypartnership can be bound by the acts of a partner if the partner was apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership. Apparent authority does not exist if the third party had actual knowledge that the agent lacked authority.
Duties to partnerships
Duty of care, Duty of loyalty.These are owed both to the partnership and to the partners.
remedies for breach of fiduciary duties to a partnership
Can sue for harm to the partnership (by majority vote of partners), or can sue in a direct action, an accounting action (suit in equity), which determines result by each partner’s investment, the partnership’s profits or losses, and share of profits to which each partner is entitled.
Directors and Officers
Directors: sit on the board of directors (Board) and are responsible for governing the corp.Officers: serve as agents of the corp. and are responsible for managing the day-to-day matters of the corp
Formation of a corp
=IncorporationOccurs upon execution and filing of the articles of incorporation (Articles), requires the incorporator(s) prepare and sign the Articles and include:§ name and address of each incorporator;§ address of initial registered office and name of initial registered agent;§ number of shares authorized to issue; and§ name of the corp.Proper filing requires an incorporator to file the Articles at the secretary of state’s office and pay the filing fee
Date of incorporation
the date of filing unless the Articles delay the date ofeffectiveness (up to 90 days from date of filing)
Corporation by estoppel
In a contract dispute between a third party and an unformed corp. believed to be properly formed, a court may:• estop the third party from alleging defective incorporation if that would unjustly expose the corp.’s principals to liability• estop the corp. from arguing it isn’t liable due to defective incorporation if it would unjustly deprive the third party of reliefCan’t use this doctrine as a defense to a tort claim
default rules for quorum and voting
• A majority of directors constitutes a quorum (unless otherwise provided in Articles or bylaws)• Board action occurs upon the affirmative vote of a majority of the directors present at the meetingThe Board can act without calling a meeting if every director gives signed, written consent (unless otherwise provided in Articles or bylaws)Shareholder meetings: quorum is majority of shares entitled to vote
default rules for notice for board meetings
Regular meetings: No notice neededSpecial meetings: at least two days’ notice of the date, time, and place of the special meeting, but need not give notice of purpose of meeting except for meetingsat which the removal of a director is to be considered
Duty of care (corps)
Directors and officers must act:§ in good faith;§ with the care an ordinary prudent person would exercise in similar circumstances; and§ in a manner reasonably believed to be in the best interest of the corp.Standard of review: BJR
BJR
Business Judgment Rule: Rebuttable presumption that directors and officers acted:o on an informed basis;o in good faith; ando honest belief that decision was in corp’s best interest
Notice of shareholder meetings
Written notice of each annual and special meetings required to be given at some point between 10 and 60 days before the meeting.Must give notice of purpose for meetings to: amend articles (must include copy of amendment), merger/dissolution (include notice of plan)
Shareholders vote on (3)
1) elect and remove directors (with or without cause)2) amend the bylaws, and3) approve fundamental changes
Info rights of SHs
Unqualified right: to examine the Articles, bylaws, minutes of SH meetings, and a list of SHs of recordQualified right: to inspect (and make copies of) accounting books and the records and minutes of director meetings (requires a good-faith demand made for a proper purpose and with specificity of that purpose and the items sought for inspection)
Appraisal rights
If a fundamental change was approved by SHs, dissenting SHs (who voted against the action) have right to sell their shares for the fair market value.Merger: this right can be exercised by any SH of a corp. that is a party of the merger (except not SHs of a subsidiary corp. in a short form merger)Share exchange: this right can be exercised only by SHs who own shares of the class/series that are to be acquired or exchanged
To compel payment of dividends, a SH must prove…
…the Director’s refusal amounted to fraud, bad faith, or an abuse of discretion.Factors to determine bad faith:• Intense hostility by controlling SHs against minority SHs• Excluding minority SHs from employment by the corp.• High salaries, bonuses, or corporate loans made to the controlling officers• If majority SHs may be subject to high personal-income taxes if substantial dividends are paid• Whether the controlling directors desire to buy the minority stock interests for as little as possible
Before bringing a derivative suit, SHs must…
make a written demand of the directors to enforce the rights of a corp. unless demand would be futile
Piercing the Corporate Veil
SHs are not personally liable for debts of the corp, but this is the exception.Factors:o Corp. is undercapitalizedo Corporate formalities have not been followedo Commingling of corporate and personal fundso Corp. is an alter ego of its SHs
amending bylaws
Generally shareholders and Board of directors may amend a corporation’s bylaws by vote, unless shareholders (in amending, repealing, or adopting a bylaw) expressly provide that board may not amend, repeal, or reinstate that bylaw.Bylaws may include any provisions for regulation and management of corporation that are not inconsistent with law or articles of incorporation
Testamentary Intent, overcome by (3)
=At the time of execution, Testator intends that this particular document be his will.Overcome by:1) Undue Influence2) Fraud: in execution (invalid) or inducement (toss part)3) Mistake: in execution
Undue Influence, for testamentary intent, presumption
Challenger must prove the wrongdoer exerted such influence over Testator that:1) Overcame Testator’s free will, and2) Caused Testator to make a transfer he wouldn’t have otherwise madePresumption of undue influence if:1) wrongdoer was in a confidential relationship with Testator (i.e. nurse), and2) suspicious circumstances surrounding thepreparation/execution of the will
Testamentary Capacity
Testator must be (1) at least 18 years old and (2) of sound mind when the will is executed.Sound mind = ability to understand the nature of: his property, his disposition, and name and relationship to the people involved
Elements of a valid will (3)
1) Testamentary intent2) Testamentary capcity3) Statutory formalities followed (depends on type of will)
Types of wills (5)
(1) attested will: writing, signed by T’s, witnessed (signed in front of notary or by two witnesses who saw him sign)(2) holographic will: UPC requires material parts in T’s handwriting, signed by T(3) contract to make a will: valid under UPC, est by provision in will or express reference to K, signed by D(4) joint/mutual will: 1 doc signed by both, revokable by either party in UPC (many states let either revoke)(5) a codicil to a will: adds/modifies existing will, need same formalities as attested will, republishes the will to take of codicil’s execution
Methods of revoking a will
1) Physical act: destroying any part2) Executing a subsequent will: express or implied revocation3) Divorce: presumption that provisions in favor of the ex-spouse don’t survive the divorce
reviving a will
A revoked will can be revived if it’s restated, re executed, or republished, or there is other clear evidence of intent to revive.Republication = resign the original will and have two witnesses attest the willA codicil made to a revoked will revives the revoked will as of the date of the codicil
Grounds for contesting an executed will (5)
o Lack of Testamentary Capacityo Undue Influenceo Mistakeo Fraudo Ambiguity
In Terrorem (No-Contest) Clause
Attempts to disqualify anyone contesting the will from taking under itMost courts won’t apply this to disqualify a beneficiary if the challenge was based on reasonable cause
Personal Property List
Under the UPC, Testator can write a list disposing of personal property (not $) if the writing describes the beneficiaries and property with reasonable certaintyo The writing disposes of the property even if not properly attestedo The writing can be created after the will is executed
Spouse’s Elective Share
A surviving spouse can decline to take under the will or pursuant to the intestacy statute, and instead to take an elective-share.Election must be made within the later of: 9 months after Decedent’s death, or 6 months after the probate of Decedent’s will.Amount: up to 50% (depending on the length of the marriage) of the augmented estate