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30 Cards in this Set

  • Front
  • Back
Major Agency Relationships:
1) Master & Servant
2) Employer & Independent Contractor
3) Principal & Agent
a) Disclosed
b) Partially Disclosed (Agent Liable)
c) Undisclosed (Agent Liable)
General vs. Special Agents
General - Continuously employed to conduct series of transactions

Special - Employed to conduct a single transaction or small group of transactions for a specific purpose.
Can a person be an agent for 2 adverse parties?
No, UNLESS both are advised of such and give consent (burden of proof on agent)
Burden of Proof to Establish Proof of Agency:
A question of act for the jury, burden lies with party asserting the relationship

Standard: Preponderance of the Evidence (Direct & Circumstantial)
Type of Agent Authority to Bind Principal:
1) Actual Authority
a) Express
b) Implied
2) Apparent
3) Inherent
a) General - power can't be limited by any private order or direction NOT KNOWN to party dealing with him
b) Special - NO AUTHORITY to bind beyond terms of specific authority
How can Principal Ratify Act of Agent:
1) P must know all material facts at time of performance
2) A must have intent to represent P at time
3) P must have been in EXISTENCE at time of act.

1) Express or Implied Action
2) Taking Benefit of Agreement
What is Respondeat Superior?
Master is liable for the torts of his servant committed while servant is ACTING WITHIN THE SCOPE of his authority and ENGAGED in master's business.

*Same with Employer & Independent Contractor
Standard applied to action to remove act from scope of employment?
A SUBSTANTIAL DEVIATION form the authorized route or action.
Right to Control by Relationship
Master & Servant - Control every aspect of task (what & how)

Employer & Independent Contractor - What but NOT how
Helpful Factors in Establishing Relationship Type:
1) Method of Payment
a) hour or day - servant
b) flat sum - ind con

2) Length of Employment
a) long term - servant
b) short term - ind con

3) Distinct Business (ind con)

4) Supervision
a) high degree - servant
b) low degree - ind con

5) Skill Required
a) little skill - servant
b) specific skill - ind con
Liability for Torts of an Independent Contract:
1) Inherently Dangerous Activity (Blasting, Demolition, Etc)
2) Nuisance
3) Dangerous Disrepair (Employers place in dangerous state of disrepair so hires ind contractor to fix)
4) Non-Dischargeable Duties
Is a Master liable for acts of a SUBservant?
Generally NO, unless engaged with master's express or implied authority.
Principal liability for Torts of Agent:
Nonphysical - Yes if torts such as deceit, defamation, and interference with contractual relationship.

Physical - Yes, IF at time of incident Agent was also servant.
What kind of duty does an Agent owe a Principal?
Fiduciary Duty
What duty does a Principal owe an Agent?
Compensation (reasonable compensation for services, unless breach of fiduciary duty)
Indemnification (lawful acts in good faith, with P authority)
Termination of Agency Relationship:
1) Generally Terminable AT WILL.
2) Bankruptcy, Death, Loss of Capacity, Drastic Change in Circumstances, Agent Breach of Fiduciary Duty TERMINATES Relationship

*Exception if CONTRACTUAL relationship
If notice is not given of termination of agency relationship can P still be held liable?
What is a Partnership?
An association of two or more persons to carry on as co-owners a business for profit.
What is a Limited Liability Partnership?
A partnership that has filed a statement of qualification.
Can a judgement against the partnership be assessed against a partner's assets?
Generally NO, unless judgement also against partner.
Does a sole proprietorship provide an entity distinct from its owner?
Formation of a Partnership?
1) Agreement (Written or Oral)
2) Intent
3) Right to Share Control
Parts of a Partnership Statement:
1. Filing (Secretary of State)
2. Recording (if Real Property)
3. Execution (2 Partner Req.)
4. Amendment or Cancellation of Statement (Name Partnership, ID Statement to be Affected, State the Substance of Amendment or Cancellation)
Duties of Partners (To Each Other and Partnership):
1) Duty of Loyalty
2) Duty of Care (Refrain from Gross Negligence, Reckless Conduct, Intentional Misconduct, Knowing Violation of Law)
3. Duty of Good Faith & Fair Dealing
Rights of Partners:
1) Partner's Account
2) Share of Profits & Losses
3) Right to Reimbursement & Indemnity
4) Right to Manage
5) Possession of Partnership Property (only on behalf of partnership)
6) New Members Acceptance (ONLY with consent of all partners)
How is Partnership Property Acquired?
1) In the name of the partnership
2) One or more partners with indication in instrument transferring title to capacity as partner.

1) To partnership in name
2) One or more of partners (partnership named)
When if Property Presumed to be Partnership Property?
Purchased with Partnership Assets (even if not in name of partnership)
When is Property Presumed to be SEPARATE Property?
Property acquired in name of one or more partners, without indication of transfer or name in partnership, WITHOUT partnership assets even if used for partnership purposes.
Liability of Partner's:
Partners are liable jointly and severably for all obligations of the partnership UNLESS otherwise agreed upon or stated by law.
Statement Requirements of Limited Liability Partnership:
1) Name of Partnership
2) Address of CEO Office, Address of Office in State
3) Name & Address of Agent for Process
4) Statement of Intent to be LLP
5) Deferred Effective Date