2011 Mee Agency & Partnership Law Dc

Front 1

Major Agency Relationships:

Back 1

1) Master & Servant
2) Employer & Independent Contractor
3) Principal & Agent
a) Disclosed
b) Partially Disclosed (Agent Liable)
c) Undisclosed (Agent Liable)

Front 2

General vs. Special Agents

Back 2

General - Continuously employed to conduct series of transactions

Special - Employed to conduct a single transaction or small group of transactions for a specific purpose.

Front 3

Can a person be an agent for 2 adverse parties?

Back 3

No, UNLESS both are advised of such and give consent (burden of proof on agent)

Front 4

Burden of Proof to Establish Proof of Agency:

Back 4

A question of act for the jury, burden lies with party asserting the relationship

Standard: Preponderance of the Evidence (Direct & Circumstantial)

Front 5

Type of Agent Authority to Bind Principal:

Back 5

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

Front 6

How can Principal Ratify Act of Agent:

Back 6

Requirements:
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.

Ratifying:
1) Express or Implied Action
2) Taking Benefit of Agreement

Front 7

What is Respondeat Superior?

Back 7

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

Front 8

Standard applied to action to remove act from scope of employment?

Back 8

A SUBSTANTIAL DEVIATION form the authorized route or action.

Front 9

Right to Control by Relationship

Back 9

Master & Servant - Control every aspect of task (what & how)

Employer & Independent Contractor - What but NOT how

Front 10

Helpful Factors in Establishing Relationship Type:

Back 10

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

Front 11

Liability for Torts of an Independent Contract:

Back 11

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

Front 12

Is a Master liable for acts of a SUBservant?

Back 12

Generally NO, unless engaged with master's express or implied authority.

Front 13

Principal liability for Torts of Agent:

Back 13

Nonphysical - Yes if torts such as deceit, defamation, and interference with contractual relationship.

Physical - Yes, IF at time of incident Agent was also servant.

Front 14

What kind of duty does an Agent owe a Principal?

Back 14

Fiduciary Duty

Front 15

What duty does a Principal owe an Agent?

Back 15

Compensation (reasonable compensation for services, unless breach of fiduciary duty)
Indemnification (lawful acts in good faith, with P authority)

Front 16

Termination of Agency Relationship:

Back 16

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

Front 17

If notice is not given of termination of agency relationship can P still be held liable?

Back 17

YES

Front 18

What is a Partnership?

Back 18

An association of two or more persons to carry on as co-owners a business for profit.

Front 19

What is a Limited Liability Partnership?

Back 19

A partnership that has filed a statement of qualification.

Front 20

Can a judgement against the partnership be assessed against a partner's assets?

Back 20

Generally NO, unless judgement also against partner.

Front 21

Does a sole proprietorship provide an entity distinct from its owner?

Back 21

NO

Front 22

Formation of a Partnership?

Back 22

1) Agreement (Written or Oral)
2) Intent
3) Right to Share Control

Front 23

Parts of a Partnership Statement:

Back 23

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)

Front 24

Duties of Partners (To Each Other and Partnership):

Back 24

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

Front 25

Rights of Partners:

Back 25

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)

Front 26

How is Partnership Property Acquired?

Back 26

1) In the name of the partnership
2) One or more partners with indication in instrument transferring title to capacity as partner.

Transfer:
1) To partnership in name
2) One or more of partners (partnership named)

Front 27

When if Property Presumed to be Partnership Property?

Back 27

Purchased with Partnership Assets (even if not in name of partnership)

Front 28

When is Property Presumed to be SEPARATE Property?

Back 28

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.

Front 29

Liability of Partner's:

Back 29

Partners are liable jointly and severably for all obligations of the partnership UNLESS otherwise agreed upon or stated by law.

Front 30

Statement Requirements of Limited Liability Partnership:

Back 30

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