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A - P
| Question | Answer |
|---|---|
| Capacity to create an Agency Relationship | Principal must have contractual capacity, but an agent need not. |
| Formalities to create an Agency Relationship | Mutual Consent, but no consideration. Generally no writing, but many Sts req writing when K the agent is to enter into w/ a Third Party w/in certain provisions of SoF. |
| Agreement of Parties to create an Agency Relationship (types) | 1) Actual 2) Apparent/Estoppel, 3) Ratification |
| Subagent | Person appointed by an agent to perform functions that the agent has consented to perform on behalf of the agent's principal. |
| Co-agent | (another agent of the principal) Agent does not delegate own power to that person. |
| Liability of Agent for Subagent | Absolute Liability to Principal for breaches by subagent. |
| Principal's Duties | Compensation, Co-operation, Indemnity/Reimbursement, Express K'al Clause |
| Agent's remedies for principal's breach of duties | Contractual Remedies or Possessory Lien |
| Agent's Duties | Reasonable Care, Loyalty, Obedience, Express Contractual Duties |
| Principal's Remedies for Agent's Breach of Duties | Contract Remedies (if agent compensated), Tort Remedies, Constructive Trust, Action for Secret Profits, Withhold Compensation |
| Actual Authority | Authority agent reas'ly believes she possesses based on Principal's dealings w/ her. May be EXPRESSED or IMPLIED. |
| Express Authority | Actually contained w/in four corners of agency agreement. (effective even if by mistake or misrep) |
| Implied Authority | Agent reas'ly believes has as a result of principal's actions. |
| Apparent Authority | Third Party reas'ly believes agent has based on third party's dealings w/ principal. |
| Ratification | Effective a/f Agent enters K on P's behalf and b/f TP w/draws. |
| Termination of Authority | Lapse of specified/reas Time, Specified Event, Change in Circ, A's breach of fiduciary duty, Unilateral termination by either party, Operation of Law |
| Death of Agent or Principal | Death terminates an Agency unless Agency is IRREVOCABLE. |
| Irrevocable Agencies | Agency coupled w/ INTEREST nor power given as SECURITY. |
| Death in re Apparent Authority | (majority) Death does NOT automatically terminate the A's apparent authority. |
| Agent's liability on K | Generally not, EXCEPT: liable if parties intended A be liable, liable for implied warranty that P has K'al capacity and exists and that A is Agent |
| Partially/Undisclosed Principal | Liability for both P and A. |
| Liability of Principal for A's torts under Respondeat Superior | EE vs Independent Contractor |
| Liability of Principal for Independent Contractor | 1) Inherently Dangerous activity, 2) duty non-delegable, 3) P knowingly selected an incompetent independent contractor (DIRECT LIABILITY) |
| Liability of Principal for EE | W/in Scope of Employment (VICARIOUSLY LIABLE) |
| For Ratification of K or Tort | ER/Principal must have knowledge of ALL MATERIAL FACTS. |
| Partnership | Association of two or more persons to carry on as co-owners a business for profit. |
| Creation of Partnership | No formalities required. |
| Presumption of Partnership | Sharing of Profits |
| Rebuttably Presumed Separate Property (not partnership property) | 1) held in name of one or more partners, 2) no indication on instr of person's capacity as a partner or mention of partnership, 3) partnership funds not used to acquire property |
| If property purchased w/ Partnership Funds | Rebuttably Presumed Partnership Property |
| Duty of Loyalty | 1) account for all profits or other benefits derived by partner in connection w/ partnership business, 2) not deal w/ partnership as one w/ an adverse int, 3) not compete w/ partnerhsip |
| Duty of Care | Partner must refrain from engaging in negligent, reckless, or unlawful conduct or intentional misconduct |
| Management | All partners have equal rt to participate in management of partnership unless partnership agreement says otherwise |
| Distributions | Partners have whatever rts are granted to partnership agreement as to distribution of profits. If agreement silient, partners share profits/losses equally. |
| Remuneration | Partners have no right to remuneration for services to partnership, except for winding up. |
| Indemnification | Partner has rt to be indemnified by fellow partners for expenses incurred on behalf of partnership |
| Contribution | Partner has rt to contribution fr fellow partners where the partner has paid more than his share of a partnership liability |
| Inspection | Partner has rt to inspect and copy partnership books |
| Lawsuits | Generally, partner may sue partnership and partnership may sue partner in an action at law/equity |
| Apparent Authority (partners) | 1) Act of any partner, 2) apparently carrying on in ordinary course of partnership business or business of kind carried out by partnership, 3) Binds partnership, UNLESS, a) no authority AND b) third party knew or had notification of lack of authority |
| Vote of Partners | Majority Vote for ordinary Business. Unanimous Vote for extraordinary acts. |
| Types of Liability | All Ks (in scope of partnership business/w/ authority of partnership) All Torts (partner/EE w/in ordinary course of partnership business/w/ authority of partnership) |
| Liability of Incoming vs Outgoing Partner | An outgoing partner generally remains liable for all partnership obligations incurred while a partner,. Incoming partner generally has no liability for obligations incurred b/f became a partner. |
| Criminal Liability | Partners NOT criminally liable for crimes of other partners, unless participated in crime. |
| Dissociated Partner's Power to Bind Partnership | (w/in 2 yrs) If 1) Act would have bound partnership, and 2) third party a) reasonably believed partner still was and b) did not have notice. |
| Dissociated Partner's Liability to Other Parties | For two yrs unless files NOTICE OF DISSOCIATION (90 days) |
| Order of Distribution of Assets (winding up) | 1) Cs, including partners who are Cs 2) Partners' accounts |
| What does LImited Liability Partnership ALWAYS req? | Filing w/ Secretary of St |
| Fiduciary Duty of Limited Partner | Generally, no fiduciary duty to partnership. |
| Limited Liability Companies | 1) taxed like partnership 2) members have limited liability of SHs of corp, 3) can be run like corp or partnership |
Created by:
Sarah_Shore
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