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Agency/Partnership
Barbri Review
| Question | Answer |
|---|---|
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Issue | Whether principal will be vicariously liable for torts committed by its agent |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Two-part test, Principal will be liable for torts committed by its agent if- | 1. A principal-agent relationship exists, and 2. Tort was committed by agent within scope of that relationship |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requires | 1. Assent, 2. Benefit, 3. Control |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requires, Assent | Informal agreement b/w principal and agent |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requirement, Benefit | Agent's conduct is for principal's benefit |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requirement, Control | Principal has right to control, by having power to supervise the manner the agents of performance |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requirement, Control- Subagent | Principal will be liable for subagent's tort only if there is assent, benefit, and right to control; Not vicariously liable if do not asset and do not have right to control |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requirement, Control- Borrowed agents | Principal will be liable for borrowed agent's tort only if there is assent, benefit, and right to control; May assent and benefit, but no right to control then not vicariously liable |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship, Agents v. Independent contractors | No right to control an independent contractor and no power to supervise its performance |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship, Agents v. Independent contractors- Independent contractors | Vicarious liability for independent contractor torts not generally applicable |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship, Agents v. Independent contractors- Independent contractors, Exceptions | 1. Ultra-hazardous activities, and 2. Estoppel (if you "hold out" independent contractor w/appearance of agency, will be estoppel from denying liability) |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Scope of principal-agent relationship factors, Conduct of the kind | Was conduct "of the kind" agent was hired to perform? Scope of duties, job description |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Scope of principal-agent relationship factors, "On the job" | Frolic v. detour; Frolic= New and independent journey, Detour= Mere departure from a task |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Scope of principal-agent relationship factors, Benefit principal | Did agent intend to benefit the principal? Partial benefit is enough to be within scope |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Intentional torts, G/R | Intentional torts like battery or assault are outside the scope |
| Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Intentional torts, Exceptions | Intentional tort w/in scope if conduct was- 1. Specifically authorized, or 2. Natural from nature of job, or 3. Motivated to serve the principal |
| Agency- Liability of Principal for Contracts Entered By Agents; Issue | Whether principal is liable for Ks entered into by its agents? |
| Agency- Liability of Principal for Contracts Entered By Agents; Test | Principal liable for Ks entered into by agent only if the principal authorized agent to enter K |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority | Principal used words to express authority to agent |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, G/R | Actual express authority can be oral and private |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, Exception- Equal dignities | If K must be in writing (SoF or land), so too must the express authority be written |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, Revoked | 1. Unilateral act of either principal or agent, or 2. Death or incapacity of principal |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, Revoked- Exception | Principal gives a durable ("Survives") power of attorney (written expression of authority to enter a transaction) |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, Narrowly construed | Narrowly tailored to actual words used |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual implied authority | Authority which principal gives agent through conduct or circumstances |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual implied authority, Necessity | Implied authority to do all tasks; Necessary to accomplish an express task (i.e. close the deal, allows renting a conference room to do so) |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual implied authority, Custom | Implied authority to do all tasks; Customarily performed by persons with the agent's title or position (i.e. lawyer) |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual implied authority, Prior acquiescence by principal | Implied authority to do all tasks; Which agent reasonably believes to have been authorized from prior practice with, and acquiescence by, principal (i.e. history of acquiescence) |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Apparent authority | 1. Principal "cloaked" agent with appearance of authority, and 2. Third party reasonably relies on appearance of authority |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Ratification | Authority can be granted after contract has been entered if- 1. Principal has knowledge of all material facts regarding K, and 2. Principal accepts its benefit |
| Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Ratification, Exception | Cannot alter the terms of the K |
| Agency- Liability of Principal for Contracts Entered By Agents; Rules of liability on K: G/R | Principal is liable on its authorized K, and authorized agent is NOT liable |
| Agency- Liability of Principal for Contracts Entered By Agents; Rules of liability on K: Exception, Undisclosed principal | If principal is partially disclosed (only the identity of principal concealed) or undisclosed (fact of principal concealed), authorized agent may nonetheless be liable at the election of the third party |
| Duties Agent Owes To Principal- Reasonable compensation and reimbursement; Agents owes principals | 1. Duty of reasonable care, 2. Duty to obey reasonable instructions (not lie/break law), 3. Duty of loyalty |
| Agency- Duties Agent Owes To Principal; Reasonable compensation and reimbursement: Agents owes principals, Duty of loyalty | Agent may never do any of the following- 1. Self-dealing (Agent cannot receive benefit to detriment of principal), 2. Usurping principal's opportunity, 3. Secret profits (Making a profit at principal's expense without disclosure) |
| Partnership- General partnership formation; Formalities | No formalities to being a general partnership |
| Partnership- General partnership formation; Definition | Association of 2 or more persons who are carrying on as co-owners of a business for profit |
| Partnership- General partnership formation; Key factor | Sharing of profits; Partners contribute money or services for a share of profits, if any, the contribution of money or services in return for share of the profits, if any, creates a presumption that general partnership exists |
| Partnership- Liabilities of general partners to third parties; Agency principles apply | Partners are agents of partnership for apparently carrying on usual partnership business; General partnership is liable for each partner's torts in scope of partnership business and for each partner's authorized Ks |
| Partnership- Liabilities of general partners to third parties; Debts | Each general partner is personally liable for all debts of partnership and for each co-partner's torts |
| Partnership- Liabilities of general partners to third parties; Debts: Incoming partner's liability for pre-existing debts | No direct personal liability, but capital contributed can be used for that purpose |
| Partnership- Liabilities of general partners to third parties; Debts: Dissociating (withdrawing) partner's liability for subsequent debts | Partner retains liability until actual notice of dissociation is give to creditor, or until 90 days after filing "notice of dissociation" with state |
| Partnership- Liabilities of general partners to third parties; General partnership liability by estoppel | One who represent to a third party that a general partnership exists will be liable as if a general partnership exists |
| Partnership- Rights and liabilities b/w general partners; General partners are fiduciaries of each other and partnership | General partners owe to each other and partnership a duty of loyalty- Meaning general partners may never engage in self-dealing, USUPR partnership opportunities, and make secret profit at partnership's expense |
| Partnership- Rights and liabilities b/w general partners; General partners are fiduciaries of each other and partnership: Action for accounting | Partnership may now bring action to recoup losses, or to account for profits made by breaching partner (disgorge) |
| Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Specific partnership assets | Land, leases, equipment, trucks, cars owned only by partnership, and cannot be transferred by any individual partner |
| Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Share of profits | Personal property owed by individual partner, and can be transferred (i.e. inherited) |
| Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Share in management | Not personal property, and cannot be transferred, partnership interest is relatively illiquid, only profits are personal property |
| Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Fact pattern | In order to determine whether fact pattern involves property owned by partnership or personal property owned by an individual partner |
| Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Fact pattern, Test | Whose money was used to buy property, if partnership money was used, the property is partnership, if personal funds were used, it becomes personal property |
| Partnership- Rights and liabilities b/w general partners; Management | Absent an agreement, each partner is entitled to equal control (vote); Majority vote= enough for ordinary affairs, Unanimous vote= required for fundamental partnership matters |
| Partnership- Rights and liabilities b/w general partners; Salary | Absent an agreement, partners get no salary |
| Partnership- Rights and liabilities b/w general partners; Salary: Exception | Compensation for helping to "wind up" |
| Partnership- Rights and liabilities b/w general partners; Partner's share of profits and losses | Absent an agreement- 1. Profits shared equally, 2. Losses shared like profits |
| Partnership- General partnership dissolution; Key definitions: Dissolution | In absence of an agreement that specifies events of dissolution, a general partnership dissolves upon notice of the express will of any one general partner to dissociate |
| Partnership- General partnership dissolution; Key definitions: The real end of partnership | Termination |
| Partnership- General partnership dissolution; Key definitions: Winding up | Remaining partners liquidate assets to satisfy creditors |
| Partnership- General partnership dissolution; Partnership's liability: Old business | The partnership and therefore its individual general partners retain liability on- All transactions entered to wind up old business with existing creditors |
| Partnership- General partnership dissolution; Partnership's liability: New business | The partnership and therefore its individual general partners retain liability on brand new transaction during winding up until- Notice of dissolution is given, but liability terminates 90 days after filing "statement of dissolution" |
| Partnership- General partnership dissolution; Priority of distribution | Each level satisfied before beginning next |
| Partnership- General partnership dissolution; Priority of distribution: Order of priority | 1. Pay all creditors, 2. Repay all capital contributions paid into partnership by partners, 3. Profits or losses |
| Partnership- General partnership dissolution; Priority of distribution: Order of priority, Creditors | 1. Trade creditors, suppliers, and 2. Partners who loaned money |
| Partnership- General partnership dissolution; Priority of distribution: Order of priority, Capital contributions | Money paid in by partners (not loans) not for any fixed rate of interest |
| Partnership- General partnership dissolution; Priority of distribution: Order of priority, Profits/losses | Any money remaining, shared equally in the absence of an agreement |
| Partnership- General partnership dissolution; Priority of distribution: Rule | Each partner must be repaid his/her loans and capital contributions, plus that partner's share of any profits, or minus that partner's share of any losses |
| Partnership- Alternative unincorporated business organizations; Limited partnerships | A partnership with at least 1 general partner and at least 1 limited partner, dual liability/limited liability forms |
| Partnership- Alternative unincorporated business organizations; Limited partnerships: Formation | Limited liability forms must file "limited partnership certificate" that includes names of all general partners |
| Partnership- Alternative unincorporated business organizations; Limited partnerships: Liability and control, General partners | General (substantial managerial) control, and general liability |
| Partnership- Alternative unincorporated business organizations; Limited partnerships: Liability and control, Limited partners (majority) | Have limited liability, not liable for obligations of other partners or partnership. The law in most states, and for this bar exam, is still that a limited partner may not manage the business without forfeiting limited liability |
| Partnership- Alternative unincorporated business organizations; Limited partnerships: Liability and control, Limited partners- Revised uniform limited partnership act (minority) | Limited partners may manage without forfeiting limited liability |
| Partnership- Alternative unincorporated business organizations; Registered limited liability partnership (RLLP): Formation | Must file "statement of qualification" and annual reports |
| Partnership- Alternative unincorporated business organizations; Registered limited liability partnership (RLLP): Liabilities | No partner is liable for partnership obligations, but they are liable for own wrongdoing, or wrongdoing of those under their direct supervision |
| Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Defined | A hybrid b/w corporation and partnership in which owners who are called members have limited liability and also benefits of partnership tax treatment |
| Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Formation requirements | Organizers must file articles of organization and adopt an operating agreement |
| Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Control | Owners (members) control, but may delegate to a team of managers |
| Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Limited liquidity | A full membership interest may not be transferred without unanimous consent of all members, or as provided in the operating agreement |
| Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Limited life | The articles of organization or operating agreement must indicate events of dissolution |
| Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): LLC= | Limited liability + limited liquidity + limited life + Limited tax |
Created by:
dmoore147
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