Agency And Partnership

Front 1

When is P liable for A's torts?

Back 1

a- Assent, Benefit, Control + Scope; b- No Vicarious liab for independent K's torts; c- Intentional tort gen outside scope

Front 2

When is P liable for A's contracts?

Back 2

When agent had express, implied or apparent authority, or ratification.

Front 3

Are authorized agents liable for contracts?

Back 3

No, unless there is an undisclosed P

Front 4

What is ratification?

Back 4

Knowledge plus Acceptance of Benefits

Front 5

What duties do an A owe a P?

Back 5

care, obedience, and loyalty

Front 6

What is the remedy for a breach of an A's duty to P?

Back 6

Actual, unless Loyalty then also disgorge profits

Front 7

What is a partnership?

Back 7

an association of 2 or more persons carrying on a business for profit; no formalities required

Front 8

two part test for P liability?

Back 8

1- must be a P-A relationship; and 2- tort committed by A w/in scope of that relationship

Front 9

When is there a P-A relationship?

Back 9

Assent, Benefit, and Control

Front 10

vocabuntur

Back 10

they be being called

Front 11

What is the significant of Benefit in determining an agency relationship?

Back 11

Agents conduct must be for P's benefit.

Front 12

What does control mean, when determining an agency relationship?

Back 12

P must have the right to control the A by having the POWER TO SUPERVISE manor of A's performance

Front 13

Is P vicariously liable for the actions of a Sub-Agent?

Back 13

No, unless A,B, C

Front 14

Is P vicariously liable for actions of a Borrowed Agent?

Back 14

No, unless A,B,C

Front 15

what is the key distinction between Agents and Independent Contractors?

Back 15

No right to control Independent K, bc there is no power to supervise the manor of his performance.

Front 16

when is the P liable for Independent K torts?

Back 16

No vicarious liab for indep. K, unless Ultra hazardous activity or Estoppel

Front 17

State the Ultra Hazardous exception to indep K torts?

Back 17

if Indep K committs a tort while engaged in ultra hazardous activities then P is liable

Front 18

State the Estoppel exception to indep K liability for torts

Back 18

if you hold out Idep K w/ appearance of agency then you are prevented from denying vic liab

Front 19

Scope of P-A relationship factors

Back 19

1- conduct of the kind agent hired to perform, 2- did it occur on the job (frolic vs. detour); 3- did agent intent to benefit P

Front 20

Frolic and Detour

Back 20

f- new and independent journey = not w/in scope
D- mere departure from assigned task = w/in scope

Front 21

What is the significant of Benefit in determining an agency relationship?

Back 21

Agents conduct must be for P's benefit.

Front 22

What does control mean, when determining an agency relationship?

Back 22

P must have the right to control the A by having the POWER TO SUPERVISE manor of A's performance

Front 23

Is P vicariously liable for the actions of a Sub-Agent?

Back 23

No, unless A,B, C

Front 24

Is P vicariously liable for actions of a Borrowed Agent?

Back 24

No, unless A,B,C

Front 25

what is the key distinction between Agents and Independent Contractors?

Back 25

No right to control Independent K, bc there is no power to supervise the manor of his performance.

Front 26

when is the P liable for Independent K torts?

Back 26

No vicarious liab for indep. K, unless Ultra hazardous activity or Estoppel

Front 27

State the Ultra Hazardous exception to indep K torts?

Back 27

if Indep K committs a tort while engaged in ultra hazardous activities then P is liable

Front 28

State the Estoppel exception to indep K liability for torts

Back 28

if you hold out Idep K w/ appearance of agency then you are prevented from denying vic liab

Front 29

Scope of P-A relationship factors

Back 29

1- conduct of the kind agent hired to perform, 2- did it occur on the job (frolic vs. detour); 3- did agent intent to benefit P

Front 30

Frolic and Detour

Back 30

f- new and independent journey = not w/in scope
D- mere departure from assigned task = w/in scope

Front 31

are P's liable for A's intentional torts?

Back 31

Generally no (outside scope)

Front 32

Exceptions to No P liability for A intentional torts

Back 32

1- authorized by P; 2- natural from nature of employment; OR 3- motivated by a desire to serve P

Front 33

Test for P liab for A's contracts

Back 33

P is liable for K entered into by its agent if the P authorizes the agent to enter the K

Front 34

4 types of authority to bind P in K?

Back 34

Actual Express, Actual Implied, Apparent, Ratification

Front 35

Oral express authority

Back 35

express authority can be oral and private, but it is narrowly contrued, except if K itself must be in writing (land)

Front 36

how is express authority revoked?

Back 36

unilateral act of either P or A or death or incapacity of P

Front 37

durable power of attorney

Back 37

express authority revoked on death except with durable power of attorney. conspicuous big bold letters of survival.

Front 38

Actual Implied Authority

Back 38

authority A RSB believes P has given bc of Necessity, custom, or prior dealings

Front 39

when is there implied authority to bind due to Necessity

Back 39

to do all tasks which are necessary to accomlish the expressly authorized task

Front 40

when is there implied authority to bind due to custom?

Back 40

to do all tasks which are customarily performed by persons w/ agents title or position

Front 41

when is there implied authority to bind due to prior dealings?

Back 41

to do all tasks which A believes to be authorized to do from prior acquiescence by the P

Front 42

When is there apparent authority?

Back 42

when the P "cloaked" A with the appearance of authority and 3rd party RSB relies on appearance of authority

Front 43

When an A has lingering authority...

Back 43

P can be liable for A contracts

Front 44

when is A's K ratified?

Back 44

after K entered into if; P has knowledge of all materail facts regarding K, and P accepts its benefits

Front 45

what is the exception to ratification?

Back 45

in ks it cannot alter the terms of the K

Front 46

Are authorized agents liable for K's of P?

Back 46

No, except for undisclosed P

Front 47

Agency principals of PTSHP?

Back 47

partners are agents of PTSHP for carrying on usual business; PTSHP is bound by torts and contracts of pts.

Front 48

Are general partners personally liable for debts of partnership?

Back 48

yes

Front 49

Are incoming partners liable for pre-existing debts?

Back 49

generally not but any money paid into partnership can be used to satisfy the debt

Front 50

Are Dissociating partners liable for subsequent debts?

Back 50

generally yes until actual notice to creditors OR 90 after filing notice of dissolution w/ state

Front 51

what is a general partnerhip liability by estoppel

Back 51

one who represents to 3rd party that gen ptshp exist = liable as if it does

Front 52

limited partnership

Back 52

at least 1 general partner adn 1 limited partner, must file limited ptshp certificate including names of all gen parthers

Front 53

liability of limited partnership's general partner?

Back 53

general partners are liable for all Limited ptnshp obligations but also have right to manage/control

Front 54

Liability of limited partners

Back 54

not liab for limited ptnshp's obligations, and may not control business w/o forfeiting status

Front 55

Registered Limited Liab prtnshp?

Back 55

must register w state statement of qualification plus annual reports; no partners are liable

Front 56

what are duties of general partners

Back 56

not engage in self dealing, usurp ptnshp opportunities, make secret undisclosed profits

Front 57

remedies for breach of gen partners duties

Back 57

recover losses caused by breach AND disgorge profits made by disloyal Pt.

Front 58

rights of partners to parnership property

Back 58

only liquid property is share of profits

Front 59

default rule of management?

Back 59

absent agreement partners are equally entitled to control

Front 60

default rule of salary?

Back 60

no salary for partners

Front 61

default rule for partner's share of profits?

Back 61

profits shared equally, and losses shared like profits

Front 62

when does dissolution occur?

Back 62

absnet agreement upon notice of express will of 1 gen partner to dissosociate

Front 63

winding up

Back 63

period between dissolution and termination (real end)

Front 64

compensation and liability for winding up rule?

Back 64

exception to no salary rule, a pt gets compensated for this

Front 65

partnership;'s liab for winding

Back 65

old business- all transactinos w existing creditors; new- retain liab until actual notice or 90 after file statement of dissolution w/ state

Front 66

Priority rules of distribution

Back 66

1- creditors (inside/outside); 2- pt's capital contributions; 3- profits/surplus equally to pt's

Front 67

do partners share in losses?

Back 67

yes, each pt must be repaid his loans and cap contributions, plus pts share of profits or minus losses