Misc. Flashcards
What is required for a Valid Cohabitation Contract?
Contracts between unmarried cohabitants will be enforced if sexual relations are not the only consideration for the contract. Must have proof of the contract/oral agreement
General Adoption Rules
A child may not be adopted without consent from both of the child’s biological parents. However, whether consent must be obtained from an unwed father or mother depends on how involved the parent was with the child. Unwed parents have the right to raise their own children (liberty interest) and if the parent has demonstrated a commitment to the child, they are protected by due process. An unwed parent may block an adoption unless a court finds they are an unfit parent.
Factors a Court will Consider in Distributing Marital Property in a divorce
Earning Capacity of Each Party, Duration of the Marriage, Standard of living during the Marriage, Source of the Money used to purchase Marital Property, Each party’s health, custody of the minor child, each party’s contribution to the marriage, etc.
Promoter Definition and Promoter Liability
A promoter is a person who procures commitments for capital and instrumentalities on behalf of a corporation that will be formed in the future. As a general rule, promoters are personally liable on all such contracts, and this liability continues even after the corporation is formed and even if the corporation also becomes liable on the contract by adopting it. Exception: A promoter will not be liable on a pre-incorporation contract if the agreement between the parties expressly indicates that the promoter is not to be bound. In such a case, the contract is considered to be an offer to the proposed corporation. (signing on behalf of the corporation doesn’t fit the exception)
Liability of a Corporation on a Promoter’s Contract
A corporation is not liable for a contract entered into by a promoter. However, the corporation can become liable if it adopts a promoter’s contract. Adoption can be express or implied
Vicarious liability of a car owner for the tortious conduct of another driving the owner’s automobile
The delivery company is also not vicariously liable for permitting its employee to drive its car-the general rule absent a statute to the contrary is that an automobile owner is not vicariously liable for the tortious conduct of another driving the owner’s automobile. However, the owner may be liable for its own negligence in entrusting the car to a particular driver.
prima facie case of intentional misrepresentation or fraud
To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove (i) misrepresentation by defendant, (ii) scienter, (iii) intent to induce plaintiff’s reliance on the misrepresentation, (iv) causation (actual reliance on the misrepresentation), (v) justifiable reliance on the misrepresentation, and (vi) damages. The element of scienter, which involves defendant’s state of mind, requires plaintiff to show that defendant made the statement knowing it to be false or made it with reckless disregard as to its truth or falsity.
Factors to Consider for Independent Contractor vs. Employee
Whether the person’s physical conduct in the performance of the services is subject to the employer’s control or right to control. An Employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work) Factors: Level of skill required, Who supplies the instrumentalities, Duration of the Relationship, Whether the work is part of the principal’s regular business, etc.
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, at least in part, by a purpose to serve the employer.
Customary Exceptions to Statutes
Sometimes permitted if the custom is safer than the statute.
How an Agency Relationship Forms
To establish an agency relationship, there must be: assent between the parties, an intention to benefit the principal, and the principal must have control over the agent.
Fully Disclosed Agency
An agency is fully disclosed when the agent notifies the third party that she is an agent, and when she identifies the principal. In such a case, the principal is liable for the agent’s acts.
Undisclosed Agent
When both the relationship and the principal’s identity is undisclosed, the third party may sue the agent personally for enforcement of the contract and the principal is not liable unless the principal later ratifies the agreemtent. (Agent may sue Principal if he doesn’t accept the purchase and agent had actual authority)
Ratification of an Agent’s Unauthorized Contract
When the principal had capacity to enter into a contract at the time it was made by the agent, the principal may later ratify the contract, even if the agent at the time did not have authority to enter into it. Ratification may be expressed or implied, where a principal does not refute a contract and instead uses the goods supplied.
Partially Disclosed Agent
Third parties knows they are dealing with an Agent, but don’t know who the principal is. As such, the agent, the principal, or both may be sued by the manufacturer under the terms of the contract
Vicarious Liability for an Independent Contractor
Employers are generally not liable for an independent contractor’s (IC) torts unless the employer had a nondelegable duty, the work was an inherently dangerous activity, or tort was within the scope of employment, the IC was hired to do (such as a bouncer using violence to stop a fight) Apparent authority can also hold a principal vicariously liable for the torts of an IC.
How to Create a Valid Limited Partnership
A limited partnership must include a general partner who has signed the initial Certificate of Limited Partnership filed with the Secretary of State and a certificate of limited partnership must be filed with the state.
How to Form a Valid General Partnership
the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” (Common property or part ownership is insufficient, has to be an attempt to make a profit)
How to properly file suit against a General Partnership
You must sue the partnership as well as the individual partners. The debts must first be paid out of the partnership’s assets and then the claimant can go after the partner’s individual assets.
Liability of General Partnerships
Partners of a general partnership are liable jointly and severally for all obligations of the partnership. The partnership could become obligated for the loss caused to the collector as a result of the misrepresentation by Ben, provided he was acting in the ordinary course of the partnership business. (had actual or apparent authority)
Liability of New Partners to a General Partnership
A person admitted to an existing partnership is not personally liable for any partnership obligations incurred before the person’s admission. Knowledge of liability created prior to entering the partnership will not change the liability for the new partner.
Limited Liability Partnership (Liability)
Partners of a Limited Liability Partnership are personally liable for the obligations of the partnership or the torts of other partners. (Still always liable for one’s own torts) If a GP becomes an LLP, the personal liability of the partners still exists for obligations made while the GP still existed.
Withdrawing from a Partnership
In the absence of such limitations, however, when the partnership is a partnership at will – as opposed to a partnership for a definite term or undertaking – the partners are free to withdraw at any time, for any reason or no reason. In a partnership at will, the withdrawal of a partner precipitates dissolution, unless all the partners – including the properly dissociating partner – agree within ninety days that the partnership should continue. Following dissolution, the partnership exists only to wind up its business.
Winding Up a Partnership
Occurs after a dissolution. During this stage, the partnership will square its debts with creditors, pay out partnership shares to partners, and eventually, cease to exist as a distinct legal entity
