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NY BAR REVIEW > NY BAR REVIEW 18 > Flashcards

NY BAR REVIEW 18 Flashcards

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1
Q

what is a partnership?

A

association of 2 or more competent persons, co owners of business, for profit.
contract law and agency law.

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2
Q

partnership is treated how?

A

as entity for some purposes, but not for others.

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3
Q

who’s debt is in the partnership?

A

the individual partners’.

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4
Q

who’s land title is in the partnership?

A

the partnership’s.

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5
Q

who’s sued in the partnership?

A

the partnership’s.

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6
Q

who may be a partner?

A

anyone capable of entering into a binding contract

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7
Q

a partner lacking capacity in a partnership is liable for what?

A

the extent of his capital contribution

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8
Q

partnership agreement can be how?

A

express.
implied.
view parties’ conduct.

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9
Q

when is writing required in a partnership?

A

if it cannot be performed within a year.

if writing requirement is violated, partnership at will.

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10
Q

how to determine if there is a partnership?

A

express intent of the parties

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11
Q

if no intent is expressed, how do we determine if there is a partnership?

A

view title to property - is it in partnership name or individual name?
see designation of entity by parties.
see amount of activity involved in enterprise undertaken by parties - if more activity, its a partnership.
see sharing of gross returns.
see sharing of profits - unless sharing is repayment of debts, payment of wages, rent, annuity to surviving spouse of deceased partner, loan interest, consideration for sale of goodwill of business.
see sharing of losses - if dont have an agreement to share losses - no intention to be a partnership.

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12
Q

partnership by estoppel - liability to third persons - define

A

one represents himself or permits another to represent him as a partner, liable to third parties who extend credit in reliance on representation as a consequence that partner is bound to those third parties.
only partners who know of consent to this holding out will be bound in the partnership.

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13
Q

what is the partnership’s property?

A

capital & property subsequently acquired in transactions

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14
Q

what is indicated as partnership property?

A

if there is an intent to devote it to partnership purposes.
source of funds for acquisition.
use of property.
improvement of property by partnership.
relation of property to business.
title to property.
treatment of property in partnership books.
payment of maintenance costs and expenses by partnership.

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15
Q

tenancy in partnership

A

right of possession for partnership purposes

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16
Q

tenancy in partnership is assignable or mortgage-able?

A 
NOT assignable
NOT mortgage-able
NOT subject to dower rights
NOT subject to homestead laws
NOT attachable
NOT subject to any individual claims on a partner
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17
Q

can we use partnership property for another use excluding benefit of partnership?

A

NO

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18
Q

what is a partner’s interest in partnership?

A

their share of profits and surplus.

their interest is treated as personal property, assignable without dissolving the partnership and attachable.

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19
Q

what are the rights of an assignee with regards to operation of the partnership?

A

NO rights

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20
Q

may a partner sell his partner status?

A

YES, with UNANIMOUS consent of other partners

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21
Q

what is the duty a partner owes to the partnership?

A

fiduciary duty.

partner is not allowed to gain for himself on the expense of the partnership.

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22
Q

absent agreement to the contrary, what are partners’ rights in management in partnership?

A

EQUAL rights

23
Q

how do partners in partnership share in profits and surplus?

A

EQUALLY.

whatever remains after the liabilities, including those to partners.

24
Q

how do partners in a partnership contribute to the losses?

A

according to their share of profits

25
Q

remuneration - define

A

compensation

26
Q

no right to remuneration - compensation, for services rendered to partnership absent what?

A

agreement to contrary, unless it s a winding up of the business, then the surviving partner is entitled.

27
Q

what happens if the partner in a partnership promised to devote time, but failed to do so?

A

he may be charged with damages to the partnership.

28
Q

when is a partner indemnified in a partnership?

A

payments made and personal liabilities incurred in ordinary and proper conduct of business or for preservation of business or property

29
Q

when one partner in the partnership was required to pay more than his share of partnership debt, what may he do?

A

he may require others to contribute pro rata shares

30
Q

partnership’s books and info is to be kept where?

A

in principal place of business.

31
Q

the books and info of a partnership - define disclosure rights

A

ALL partners have right to inspect and copy books.

upon demand, partners MUST render true and full info of all that is affecting the partnership.

32
Q

suing in a partnership - partners - define

A

partner CANNOT sue.

partner CANNOT be sued.

33
Q

what is the exception to suing in a partnership - partners?

A

when no complex accounting is required.

34
Q

what is an action for accounting?

A

equitable proceeding whereby liability between partners and partnership are converted into liability between partners individuals.
recover balance due partner.
arises upon final settlement of partnership affairs.
may occur in actions for wrongful exclusion or recover secret profits in accord with partnership agreement.
may occur where court sees just and reasonable.

35
Q

is a partner an employee?

A

NO

36
Q

does a partner recover under workers comp?

A

NO

37
Q

what are separate actions at law in partnership?

A

segregated transactions.
tort actions against negligent partner.
tort action where employee is a tortfeasor.

38
Q

every partner in a partnership is ________?

A

an agent of the partnership for purpose of its business
carries on in usual way the business of the partnership.
binds the partnership as well as the other partners.

39
Q

partnership’s liability for act of partner may be in which fields?

A

contract.
tort.
breach of trust.

40
Q

how is actual authority in a partnership displayed?

A

partnership agreement.
majority vote of partners.
unanimous vote of partners.

41
Q

what is required to authorize submission to arbitration?

A

UNANIMOUS consent of partners

42
Q

what is required to authorize assignment of partnership property for benefit of creditors?

A

UNANIMOUS consent of partners

43
Q

what is required to authorize confession of judgment?

A

UNANIMOUS consent of partners

44
Q

what is required to authorize disposition of partnership’s goodwill?

A

UNANIMOUS consent of partners

45
Q

what is required to authorize engagement in business other than that contemplated by partnership agreement?

A

UNANIMOUS consent of partners

46
Q

apparent authority - title of real property in partnership name - explain

A

title may be conveyed in partnership name by any one partner

47
Q

each federal court has its own what?

A

bar, which a lawyer must become a member of prior to appearing for a client in that court

48
Q

if you know of another lawyer’s conduct through a privileged communication from a client, you MUST what?

A

respect the client’s instructions to keep info in confidence and MUST NOT report the conduct to the appropriate professional authority

49
Q

when may a lawyer open a law office and establish a systematic and continuous practice in a jurisdiction in which he is NOT admitted?

A

if he is a salaried employee of his only client.

50
Q

what may a lawyer NOT do if has a law office and establish a systematic and continuous practice in a jurisdiction in which he is NOT admitted, when he is a salaried employee of his only client?

A

litigate a matter.

unless admitted PRO HAC VICE

51
Q

what is pro hac vice?

A

for this occasion.

used for participation in a legal proceeding by an attorney not licensed in the jurisdiction

52
Q

what are the factors for a reasonable lawyer fee?

A

number of hours spent.
lawyer’s experience.
lawyer’s expertise.
lawyer’s reputation over the years.

53
Q

in a grand jury proceeding, the attorney MUST claim what on the company’s behalf, when asked about his communications with employees (re him being hired by the company to investigate the employees)?

A

attorney client privilege

54
Q

when MAY a lawyer reveal a client’s confidential info?

A

to extent necessary to prevent client from committing a crime or fraud that is REASONABLY CERTAIN to result in substantial financial harm to someone if client is using or has used lawyer’s services in the matter

NY BAR REVIEW (123 decks)

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