Test 3 Flashcards
Agency
Consensual, fid relation where A reps P, with power to affect P. 3rd party must be involved. Don’t need consideration to make and agency.
Types of Agency:
Actual
Express: Expressed by P to A in words
Implied: inferred from expressed authority, courts look to customs and usages of P’s biz
Types of Agency:
Agency by Ratification
Confirmation by P of a prior unauth act performed by a purported agent
P becomes bound retroactively,as if acts were auth. P is liable for things as of original date.
Reqs:P must EXIST at time of K. Can adopt, but its not retroactive.
Types of Agency:
Apparent Auth or Agency by Estoppel
-Person acts like an agent to 3rd party
-P has notice of 3party belief and does not correct it
-3p is reasonably and in good faith relies on A
-3p justifiabnly and feterminately changes her position in reliance of A’s appearent auth
Miller v. McD’s - 3K and sapphire case
Termination of Agency
1 - Acts by party (mutual agreement,lapse of time[reasonable if not stated], revokation - can’t revoke based on discrimination, may be liable for contract damages)
2- Operation of Law
Death of P in A knows or should know, or Death of A
Incapacity of P (A should know) or Incap of A. Gaddy V Douglass.
Emp vs IC
Emp Agent: P controls or has right to control MANNER and MEANS of A’s work
IC Agent : P controls end result, but not the Manner and Means of perf
IC Non-Agents - P doesn’t hire IC to work with a 3p, just two parties in a contract (IC builds a fence around your house)
DEL PILAR V DHL
Duties of P to A
Contractual Duties:Compensate, reimburse (limited, within scope, necessary to fulfill duties) Gratuitous Agent - Duty to Reimburse Other: Duty to Good Faith Duty to Cooperate If A is Emp, adtl duties
Duties of A to P
-Expressed in Contracts
-Implied by Law:
Duty to Perform - RP care
Notify (Imputed knowledge)
Account -Unauth use of funds put into constructive trust.
FID Duties:
Self-dealing
Usurping an Opp
Duty Not to Compete
Confid Info
Dual Agency / Conflicts of Int
Tort Liability of P
Authorized Act
P liable to 3p
-A liable if A’s aactions constitute tort (A can be reimbursed if didn’t know harmful) Liz Lemon - knowledge not required for trespass
Direct Liability of P and of A
P - P is liable for his own tortious conduct involving the used of agents
A - always directly liable to 3p for wrongful tort committed
Tort Liability of P
Unauth Acts of Agent
Direct Liability
Direct Liability - Neg Hiring Doctrine - based on P’s neg actions
Tort Liability of P
Unauthorized Acts of Agent: Vicarious Liability/Respondent Superior
P liable for A’s actions without direct fault of P (A’s actions, not P’s)
- If IC - P not liable
If Emp - P liable if tort was Within Scope of Emp
Scope of Emplooyment
When the emp commits the tort while performing work assigned by employer or conduct within the employer’s control.: WAS THE A ADVANCING THE P’S PURPOSE WHEN ACT OCCURRED? p. 333 Qs
As long as within “Scope of Employment,” doesn’t matter if:
• Disobedience of Principal’s Instructions
• Principal was Undisclosed
• Gratuitous agency
Tort Liability of P
Unauthorized Acts of Agent: Vicarious Liability/Respondent Superior cont’d
Scope of Emp
Detour slight deviation, within scope vs. Frolic=significant deviation, out of scope
Coming and going to work - not within scope
Dual Purpose Mission: Within scope (pers and bus errand)
Intentional Tort: Use motivation test: motive is to promote P’s bus?
Results of Unauth Acts and Vicarious Liability
Both A and P are liable to 3p for torts within the Scope of Emp
- If A is not held liable, P cannot be liable, tort actions are based on A’s acts
- Indemnification or Reimb. = P can be reimb by A for damages P had to pay since acts were not auth
Agency Disclosure
Fully disclosed - 3p knows P’s existence and identity - P liable
Partially Disclosed -3p knows existence of P, but not ID. Both liable, find out during discovery
Undisclosed - 3p does not know existence or ID of P. Both liable, find out during discovery
Implied Warranty of Authority
Warranty of an A who enters a K on behalf of another party that A has auth. If A doesn’t have auth, liable to 3p (tort)
Termination of A effect on Liabilitiy
Actual Auth - Terminates
Apparent Auth - 3p may assume auth until some kind of notice is received
General Partnership
2 or more people, default is flow-through tax, unless otherwise agreed, equal right to control and PROFIT..
Can’t be a non-profit.
Co-ownership of BIZ -
Share in profits
Right to mgmt/control
Duties - Duty of Loyalty, Duty of Obedience, Duty of Care
Limited Pship
GP - Manages the business (unlimited)
LP - investor, “Money Guy” (limited to cap cont, very limited control)
Unless agreed otherwise PROFITS = PROPORTIONAL TO CONT FROM EACH PARTNER
May assign fin int, but mgmt int only upon partners consent/
Co
Adtl Limited Pship
Defective
Agreement
Foreign
Def - Didn’t file Cert of LP or incomplete/incorrect(accept even if wrong)
Agree- not required, should create one
Foreign LP - register with new state or can’t raise legal action in that state
LLC
Legal Entity separate and distinct from Owners (members)
Create - File article of Org and comply.
Tax - flow-thru, unless election public
Interest - unless agreement states otherwise, may assign fin int, but mgt int only on consent.
Limited liability to all members
LLC
Control
Profits
Agreement
Control: Member-Managed, unless other equal right to control(fid duty and duty of care)
Manager-Managed - mgrs have equal control unless other(fid duty and duty of care), members have no control (no duty)
Profit - majority is that unless other, proportional to cont made
Corps
Created: Filing Articles of Incorporation with a state.
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Tax: Taxed as a Separate Entity
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Liability: Limited Liability for all shareholders.
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Interest: Unless stated otherwise, free to assign both financial and management interest
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Control: Shareholders elect Board of Directors to control company. BofD then elect officers to run day to day.
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Continuity: Perpetual Existence, unless otherwise stated:
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Terminates only upon dissolution of corporation or merger
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Bylaws –Required
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Rules and regulations that govern management of corporation
