Agency And Partnerships And Conflicts Of Law

Front 1

the only three agency problems ever tested:

Back 1

the only three agency problems ever tested:

a. Liability of a principal to third parties for torts of an agent

b. Liability to third parties for contracts entered by an agent

c. Duties which agents owe to principals

Front 2

AGENCY TORTS

P will be liable for torts if (2)

Back 2

Torts: principal will always be liable for torts committed by agent if:

1) principal-agent relationship exists and

2) the tort was committed by the agent within the scope of that relationship.

Front 3

AGENCY TORTS

3 things required for agency

Back 3

The P/A relationship requires:

1) assent: an information agreement between the principal who has capacity and the agent,

2) benefit: the agent’s conduct must be for the principal’s benefit,

3) control: P must have the right to control A, by having the power to supervise the manner, of the performance.

Front 4

AGENCY TORTS

1. subagents def.
2. borrowed agents

Back 4

Subagents: P will be liable for sub-agents torts only if there is assent benefit and the right to control between P and the sub-Agent tortfeasor. → there will be benefits, but NOT assent or the right to control


Borrowed agents: one P (borrowing P) borrow another P (lending P’s) agent, and the agent commits a tort. The borrowing P is NOT VL for the borrowed agent’s tort, UNLESS the borrowing P has the assent, benefit, and control, to the borrowed agent. → you might find assent, benefit, but NOT the right to control.

Front 5

AGENCY TORTS

intedependent contractor
1. subagents
2. borrowed agents

Back 5

Independent contractor: NO VL bec. NO right to control → you might find assent and benefit, but NO right to control an independent contractor = NO VL → no power to supervise IC’s performance.

1. Ultra hazardous activities Exception: if IC commits tort while engaging in ultra hazardous activity =VL for tort. (non-deligable duties equivilant)


2. Estoppel exception: if you “hold out” IC with appearance of agency = estopped from denying VL for IC’s torts.

Front 6

AGENCY TORTS

three part weighing test

Back 6

NY Three part weighing test:

1) was the conduct “of the kind” A was hired to perform? In job description = scope of Agency

2) did tort occur “on the job” = scope of agency → Frolic = new/independnt journey outside scope → detour= mere departure from assigned task, = within scope

3) did the agent intend to benefit the principal by his conduct? → partial benefit enough if A even in part wanted to benefit = within scope.

Front 7

AGENCY TORTS

intentional torts
1. rule
2. exception (3)

Back 7

Intentional torts: intentional torts = outside scope of agency.

Exception: in scope of agency if conduct was:

1) authorized by P,

2) natural from nature of employment

3) motivated by a desire to serve P.

Front 8

AGENCY K'S

Liability of P for K entered into by Agents:
1. rule

Back 8

Liability of P for K entered into by Agents:

P is liable for K’s entered into by agents if P authorized the A to enter the K. P is liable on authorized K’s but A is liable for unauthorized K’s

Front 9

AGENCY K'S

general rules:
1. if A is under no authority...
2. If A acted under authority.... (+exception)

Back 9

If A is under No authority, P is NOT liable on K→ A is liable on K

If A acted under authority, P is liable on K. → A is NOT liable on K.

Undisclosed Principal exception: if P partially disclosed (only the identity of P is concealed) or undisclosed→ Authoized agent may be liable at the election of a third party.

Front 10

AGENCY K'S

4 types of authority generally

Back 10

Four types of Authority: *discuss each:
1) actual express authority,

2) actual implied authority,

3) apparent authority, or

4) ratification.

Front 11

AGENCY K'S

actual express authority
1. rule?
2. exception?
3. revocation (2)
4. when does K survive the incapacity of P (2)

Back 11

Actual express authority: words = express authority, can be oral, private and narrow→ oral whisper =okay

Interest in land exception: if K involves interest in land more than 1 year = must be in writing ≠ be in oral → SoF


Revocation: express authority revoked by: 1) unilateral by either P or A, or 2) Death or incapacity of P.

Survives incapacity of P if: P gave agent power of atty., cannot be revoked if:

1) power of atty: a written expression of authority to enter into transaction

2) durable: conspicuous survival language. “survives incapacity etc”

Front 12

AGENCY K'S

actual implied authority:
1. rule.
2. necessity
3. custom
4. prior dealings.

Back 12

Actual implied authority: conduct or circumstances from which authority is inferred. → Authority which A reasonably believes P has givens because of 1) necessity, 2) custom or 3) prior dealing.

Necessity: implied authority to do all tasks to accomplish the expressly authorized tasks.


Custom: implied authority for tasks customarily performed by a person with the agent’s title or position.


Prior dealings: implied authority which A believes to have authority by prior acquiescence by P.

Front 13

AGENCY K'S

apparent authority
1. rule
2. secret limiting instruction
3. Lingering authority

Back 13

Apparent Authority: P always liable if two things are true. 1) P “cloaks” A with the appearance of authority, 2) 3P reasonably relies on the appearance of authority.

Secret limiting instruction: A has actual authority but P has secretly limited that authority. A acts beyond the scope of limitation.

Lingering authority: actual authority has been terminated. A continues to act on P’s behalf.

Front 14

AGENCY K'S

ratification
1. rule
2. NY Rule.

Back 14

Ratification: authority conferred by P only after K entered: 1) P has knowledge of all material facts of K, and 2) P accepts its benefits.


NY ratification cannot alter the terms of K: P must choose either to ratify the K as is, OR refuse K → P cannot alter terms.

Front 15

AGENCY

duty A owes to P

Back 15

Duty A owes to P: in return for compensation/ reimbursement A owed three duties:

1) duty to exercise reasonable case,

2) duty to obey reasonable instructions,

3) duty of loyalty.

Front 16

AGENCY

things A cannot do

Back 16

A may not:

1) self deal, receive a benefit to P’s detriment,

2) usurp opportunity from P,

3) get secret profits at P’s expenses

Front 17

PARTNERSHIPS

Three types generally

Back 17

Partnership:

(1) LP,

2)registered LLP,

3) LLC) Uniform partnership Act governs partnerships:

Front 18

PARTNERSHIPS formation

def. of gen. partnership

Back 18

Definition:

General partnership= association of 2 or more Persons who are carrying on an association as co-owners of a business for profit. (lending agreement or employment arrangement) contribution of $ or serves in return of share of profits = prima facie evidence.

Front 19

PARTNERSHIPS formation

general partnership
1. formality
2. sharing profits
3. bottom line.

Back 19

Formality: No formalities for beginning a general partnership (writing or filing ≠ required)

Sharing profits: contribution of money/capital or services in return for share of profits. = prima facie evidence of partnership

Bottom Line: general partnership = 2 or more persons enter into an agreement to carry on business, they profit promise to make contribution in return for share of profits.

Front 20

PARTNERSHIPS

liabilities of gen. Partners to 3P
1. two questions to ask
2. what are partners
3. partnership is bound by? (2)

Back 20

Liabilities of partners to 3P:

1) is gen. partnership formed?

2) who is liable? → agency principles apply

Partners = agents of partnership for carrying on usual partnership business

Partnership is bound by torts committed by partners in scope of partnership business.

Partnership is bound by K’s entered by partners with authority.

Front 21

PARTNERSHIPS

general partners and debts.
1. debts?
2. torts?

Back 21

General Partners are professionally liable for debts of partnership:

each individual general partner is personally liable for all debts owed by the partnership AND for each co-partners torts AND for partnership’s torts.

Front 22

PARTNERSHIPS

incoming partner's liability for debt

Back 22

Incoming and outgoing partners:

Incoming partner’s liability for pre-exisiting debts: incoming partner is NOT liable for prior debts, but any money or capital contributed to the partnership by an incoming partner can be used by the partnership to satisfy prior debts.

Front 23

PARTNERSHIPS

outgoing partner's liability for subsequent debt.

Back 23

Outgoing partner’s liability for subsequent debt: an outgoing/disassociating partner remains liable for future debts until he dies, UNLESS the outgoing partner gives actual notice of his withdrawal to all known, AND even potential creditors.

Front 24

PARTNERSHIPS

suing a partnership
1. how to serve?
2. how to get personal assets? (+ service)

Back 24

Suing a partnership: personal service: to obtain personal jurisdiction over a partnership, process must be personally served on at least one general partner. →

personal service= partnership asset available for satisfaction of judgment →

to make a partner’s personal assets available for satisfaction of the judgment partner must be named defendant, and the process must be served on the partner (separately from service of the partnership)

Front 25

PARTNERSHIPS

partnership by estoppel
1. def.
2. 2 situations where it applies

Back 25

General partnership liability by estoppel: if a person represents himself as a partner for a partnership and the 3P reasonably relies on that representation, P is liable as if he is the partner of the partnership. *on the bar


Partnership by estoppel applies in 2 situations: 1) when partnership DOES NOT actually exists, 2) when partnership exists, but the person is NOT a partner of the partnership.

Front 26

PARTNERSHIPS: LLP

LLP def.

Back 26

Limited Partnerships (LP): limited partnership,
1) partnership,
2) with at least one general partner with unlimited liability,
3) at least one limited partner with limited liability.

Front 27

PARTNERSHIPS

LLP: formation
1. how
2. what if you dont file properly?

Back 27

Formation: file certificate of limited partnership with Dep. Of State. →

includes ALL names of ALL general partners


If you fail to properly file = general partnership ≠ LP

Front 28

PARTNERSHIPS

LLC: liability and control of general partners

Back 28

Liability and control:

General partners: the personally liable for all debts and obligation of the business, but they may exercise, substantial control of the business. Control comes with liability.

Front 29

PARTNERSHIPS

LLC: liability and control of limited partners

Back 29

Limited Partners: NOT liable for partnership debt and obligation. However, they may NOT exercise substantial managerial control of business, without forfeiting their limited liability status.
a. If a limited partner excercises managerial control = partner is deemed to be a general partner and liable for all debts and obligations.

Front 30

PARTNERSHIPS

Reg. Limited Liability Partnership
1. Def. and formation
2. liabilities
3. what is each partner liable for.

Back 30

Registered Limited Liability Partnership (Reg. LLP): a registered LLP is a general partnership engaged in professional services.

1. Formation: File a certificate of registration with Dept. of State includes Profession to be practiced.

2. Liabilities: NO Partner will be liable (NOT even gen. partners) for the partnership debts or obligations.

a. Each partner liable only for their own wrongdoing + wrongs of those under their direct supervision

Front 31

PARTNERSHIPS

LLC: def.

Back 31

Limited liability Companies (LLC):
hybrid between corp./partnership →

owners are “members” have the same rights and limited liability of shareholders and the benefits of partnership tax treatment (corp. tax is bad; partnership tax good.)

Front 32

PARTNERSHIPS

LLC: Formation and liabilities.

Back 32

Formation: File articles of organization (≠ art. of incorp.) AND publish a summary of articles once a week for six weeks in a row in at least two news papers.


Liabilities: the members (owners) are NOT liable for any debts of the company.

Front 33

PARTNERSHIPS

LLC: partnership characteristics.

Back 33

Partnership characteristics: the partnership must have 2 of the following 3 characteristics:

1) members control (may delegate to managers)

2) limited liquidity, member interest NOT freely transferable without unanimous consent of all members,

3) limited life, LLC must have events that will dissolve LLC in the article of organization→ IF if no event LLC is dissolved upon a majority vote of the membership interests.


LLC= limited life + limited liquidity + limited liability + limited tax.

Front 34

PARTNERSHIPS

duty of loyalty (3)
1. name the duty
2. fiduciary of what?

Back 34

a. General partners are fiduciaries of each other AND of the partnership→ as fiduciaries they owe duty of loyalty. → NO

1) self-dealing,

2) usurping opportunities,

3) make a secret undisclosed profit at the partnership expense.

Front 35

PARTNERSHIPS

Remedy for breach of duty of loyalty (2)

Back 35

Action for accounting: remedy for breach of fiduciary duty. → Partnership may

1) recover losses caused by breach,

2) disgorge profits made by the breaching partner.

Front 36

PARTNERSHIPS

suing the partnership
1. rule
2. when can a partner sue? (2)

Back 36

Lawsuit between partner and partnership: a partner may NOT sue, or be sued by the partnership→ partner ≠ sue another partner on the matters related to partnership business→

Partner may sue when:

1) no complex accounting required

2) single, fully closed but unadjusted transaction is involved.

Front 37

PARTNERSHIPS

Partners rights in partnership property:
1. liquidity?
2. transerability?

Back 37

Partners rights in partnership property:

general partnership interest is relatively illiquid. →

only the share of profits and surplus is freely transferable.

Front 38

PARTNERSHIPS


Partners rights in partnership property: specific partnership property.
1. def.
2. restrictions?

Back 38

Specific partnership asset:

land, leases, and equipment, owned only by the partnership itself = specific partnership asset→

NO individual partner may transfer these partnership assets without partnership authority.

Front 39

PARTNERSHIPS

Share of profits and surplus:
1. rule
2. transerability?

Back 39

Share of profits and surplus: each partner owns their share of profits and surplus as personal property→

Each individual partner may freely transfer his share of profits and suplus to 3P = you can sell it, leave it in a will.

*ask whose $ used to buy the property

Front 40

PARTNERSHIPS

share of management
1. def.
2. transferability

Back 40

Share in management:

asset that is owned only by the partnership itself,

NOT transferrable by an individual partner→

Individual partners may NOT transfer their share of management to some third parties. (e.g. Partner can’t sell your right to vote).

Front 41

PARTNERSHIPS

Conflict between specific partnership assets and personal property: 2 rules

Back 41

Conflict between specific partnership assets and personal property:

big implication because only personal property is transferable while other things are not. Ask, “Whose money was used to buy the property?” →

If partnership money was used, its partnership property →

If personal money was used, it becomes a personal property.

Front 42

PARTNERSHIPS

Default rules: management

Back 42

Management: Absent an agreement, each partner is entitled to EQUAL CONTROL (vote).

1. “one partner, one vote” is the default rule.

2. Partners are free to make agreements about internal affairs of a partnership (Management & Money) → absent such specific agreement, there are default rule for each issue

Front 43

PARTNERSHIPS

Default Rules: salary + exception

Back 43

Salary: absent an agreement, partners get NO Salary (it is about a share of profit)→

Exception: Partners will get compensation for helping wind-up the partnership’s business.

Front 44

PARTNERSHIPS

Default rules: partner's share of profits and losses

Back 44

Partners share of profits and losses: Absent an agreement, PROFITS are shared EQUALLY →

Absent an agreement, LOSSES are shared LIKE PROFITS.

Front 45

PARTNERSHIPS

dissolution generally

Back 45

Dissolution is a process. General partnership dissolves automatically upon any material change in the partnership caused by the death or withdrawal of any single general partner. (ie has a limited life)

Front 46

PARTNERSHIPS

Dissolution def.

Back 46

Dissolution: Any material change in a partnership caused by the death or withdrawal or any single partner, causes automatic dissolution of a general partnership. (beginning of end)

Front 47

PARTNERSHIPS

Dissolution: Right to continue

Back 47

Partner may agreement to continue the partnership after dissolution, either in the original partnership agreement, or in a subsequent agreement. → there will be NO winding up.


If the right to continue is set forth in the partnership agreement, the withdrawing (or dead) partner’s rights against the partnership are defined in the agreement.

Front 48

PARTNERSHIPS: Dissolution

termination Def.
Winding up Def.

Back 48

Termination: the real end of the partnership

Winding up: The period between dissolution and termination, in which the remaining partners liquidate the partnership’s assets to satisfy the partnership’s creditors.

Front 49

PARTNERSHIPS: dissolution

Partnership liability for Winding up: old business.

Back 49

Old Business: Partnership (and individual general partners) retains liability on all transactions entered into, to windup old businesses with existing creditors.

Front 50

PARTNERSHIPS: Dissolution

Partnership liability for Winding up:
new business + exception + notice of dissolution

Back 50

New Business: Once a partnership dissolves, a partner has NO actual authority to enter into a new business on behalf of the partnership →

if a partner enters into a new business thereafter, the partner assumes sole liability (UNLESS the partner has apparent authority.

Exception: If a partner lacks knowledge of the dissolution (e.g. the fact that other partner has died), the partner still has actual authority to enter into a new business.

Notice of Dissolution: If notice of dissolution is given to all existing creditors, = terminates the partner’s apparent authority. Publication to potential creditors → after, partnership is NOT liable for ANY new business entered into by the partnership.

Front 51

PARTNERSHIPS

Dissolution: priority of distribution

Back 51

Priority of Distribution: Each level of priority must be fully satisfied before beginning the next level in this order:
1) Outside creditors,
2) inside creditors,
3) repayment of partners capital contributions,
4) profit/ surplus = shared by partners. *this is like bankr each class paid in full then next class.

Front 52

PARTNERSHIPS: dissolution

1. def. outside creditor
2. def. inside creditor
3. def. parters who made capital contributions
4. profit and surplus.

Back 52

1. Outside creditors: non-partner trade creditors. Suppliers etc (all non-partners)

2. Inside creditors: partners who loaned $ to partnership

3. Partners who made capital contributions:

4. Profit/surplus: → shares as in agreement → If NO agreement share equally.

Front 53

PARTNERSHIPS: dissolution

Rule: what must each partner get (3)

Back 53

Rule: Each partner must receive his or her

1) loans, and

2) capital contributions, plus

3) that partner’s share of the profits and losses, if any but also make them pay in their share of losses if you find losses.

Front 54

CONFLICTS


Recognition & enforcement of Judgments:
def. rendering state and recognizing state.

Back 54

Recognition & enforcement of Judgments: 1) rendering state = state handing down judgment, 2) recognizing state = enforcing state.

Front 55

CONFLICTS

Sister state judgment entitled to full faith & credit if: (2)

Back 55

Sister state judgment entitled to full faith & credit if: 1) three FFC requirements + 2) NO valid defenses apply *rendering states law controls the requirements:

Front 56

CONFLICTS

three requirements of Full faith and credit.

Back 56

1) Valid jurisdiction in rendering court over parties and subject matter

2) Final judgment: (not modifiable)→ modifiable = NOT final, NO FCC→ modifiable = enforce by comity =

i. Modifiable: future alimony, future child support→ amounts already accrued and in arrears ARE final judgments.


3) Judgment on the merits (includes default and consent judgments):

Front 57

CONFLICTS

Sister state and enforcement of judgments
Defenses: (2)

Back 57

Defenses: don't work, but talk about them.

Penal judgment: courts will not enforce judgment rendered for an offense against the public→ criminal sanction/ civil fine → winner must be the gov. not private person or entity if ≠ not gov. then NOT penal judgment

Extrinsic fraud: no enforcement of judgments where fraud could not have been coped with at earlier trial = bribing judge→ intrinsic fraud: = fraud that could have been dealt with at the earlier litigation.

Front 58

CONFLICTS

Sister state and enforcement of judgments
1. NON-Defenses: (5)
2. what do I do if mistake by the judge at the earlier trial.

Back 58

Non=defenses: don't work, but talk about them:
1) tax judgment,
2) violates forum’s public policy,
3) mistakes by previous judge,
4) inconsistent judgments,
5) intrinsic fraud


Mistake by the judge at the earlier trial: the remedy is to appeal the incorrect judgment → too late to raise the issue at the recognition of judgment stage.

Front 59

CONFLICTS:

Foreign country judgments entitled to recognition & enforcement if:
1. name test + 2 parts

Back 59

Foreign country judgments entitled to recognition & enforcement if comity test is met:

1. Jurisdiction was proper (based on the state’s ideas of due process, ie min. contacts)

2. Fair procedures used in foreign proceeding.

Front 60

CONFLICTS

DIVORCE;
1. proper SMJ?
2. ex parte divorce def.
3. bilateral divorce def.
4. consent divorce def.

Back 60

Proper subject matter jurisdiction for divorce? valid domicile of at least one party = valid Subject mater jurisdiction

1. Ex parte divorce: one spouse domiciled

2. Bilateral divorce: one domiciled, both subject to personal jurisdiction

3. Consent divorce: both spouses go together to get quickie divorce (at least one domiciled)

Front 61

CONFLICTS

Divorce: procedure
1. what is the burden of proof
2. who had standing

Back 61

Procedure:

Burden of proof: attacker bears the burden of proof, → can introduce any relevant evidence, even if in existence after divorce was granted to attack the validity of divorce

Standing: any interested person NOT estopped can attack divorce decree for lack of subject matter jurisdiction → no strangers can attack

Front 62

CONFLICTS

Divorce: Procedure
1. standing: 4 ways attacker estopped

Back 62

Attacker estopped?

1. Subject to personal juris in divorce proceeding? Bilateral divorced spouse ≠ attack

2. Played meaningful role in granting of the divorce? Drive to airport buy her a ticket etc.

3. In privity with party to the divorce? Includes KIDS! ≠ attack divorce.

4. Remarried in reliance? ≠ attack divorce.

Front 63

CONFLICTS

Property awards

Back 63

Property awards (alimony, child support): Court granting alimony/child support must have personal jurisdiction over spouse with rights in issue

Front 64

CONFLICTS

child custody decree

Back 64

Child custody decree: Valid personal jurisdiction only in child’s home state.

Front 65

CONFLICTS

DIVISIBLE DIVORCE DOCTRINE TEST

Back 65

DIVISIBLE DIVORCE DOCTRINE TEST: If you have a divorce, property award, and custody award, and some parts are valid and others not, then keep the good and ignore the rest. *important

Front 66

CONFLICTS

domicile
1. domicile at death used for? (2)
2. domcile of individual and divorce

Back 66

a. Domicile at death used to choose law for determining intestate succession of personal property

b. Domicile at death determine which state gets estate/death taxes

c. Domicile of individual gives subject matter jurisdiction over divorce

Front 67

CONFLICTS

domicile by choice
1. test
2. what is required.

Back 67

By choice: legal capacity required→ Test:

1) physical presence (short period counts) and

2) intent to remain (actions speak louder than words)

Front 68

CONFLICTS

domicile by choice rules
1. how old do you need to be?
2. how many domiciles can you have?
3. when do you lose your domicile?
4. how is motive factored in?

Back 68

1. Old enough to fend for your self =capacity.

2. only have 1 domicile but multiple residence, → 2 states can each declare you their domicile = okay.

3. You keep your domicile until you get a new one→ don't be fooled by “I hate this state” etc.

4. Motive for going to another state to acquire domicile is irrelevant

Front 69

CONFLICTS

domicile by operation of law.
1. do we have capacity?
2. children
3. wife. (CL +ML)

Back 69

By operation of law: no legal capacity = assigned domcile by operation of law. →

1. Child domicile of parents (or custodial parent) if no capacity to choose. (remember can fend too)

2. Wife: old rule W domicile = H domcile→ Modern Law: married woman = domicile of her choice (EX H and W live in diff. states)

Front 70

CONFLICTS

choice of law general

Back 70

Choice of Law: Need significant contact giving legitimate interest to satisfy Constitution (due process & full faith and credit). Not enough if someone moves to state after event and move is the only contact with state, or only connection to state is the fact suit is filed there → no weighing of interest. → *fact pattern will likely give you sig. contact giving legitimate interest.

Front 71

CONFLICTS

choice of law: vested rights approach
1. def.
2. Torts
3. K's

Back 71

Traditional system: Vested rights approach (law applied is law where P’s rights vested)= territorial approach. → has a rule for every area of law but can lead to application of a state’s law that has no policy interest in the outcome of litigation.

i. Torts: where injury or wrong happened = apply that law.

ii. K’s: rights vest at formation = apply law where K made.

Front 72

CONFLICTS

gov. interest analysis approach
1. explain 5 parts
2. def. false conflit
3. def. true conflicts
4. def. disintereested forum case.
5 unprovided for case

Back 72

NY System: gov. interest analysis approach (Babcock analysis)

i. List the factual connections with each state

ii. Note the different state laws in issue

iii. Find out the policies underlying each state’s law by consulting legislative history and court decisions: SHORT CUT: Which favors P/D?

iv. Relate the facts to the policies to see if state has interest in seeing its law applied. SHORT CUT: Does a party being favored by a state’s law reside in that state?

v. Apply the law of the state with the greatest government interest in the outcome:

1. False conflict (only one state has interest): apply that state
2. True conflict (more than one interest, one is forum state): apply forum state unless other state’s interest is much greater
3. Disinterest forum case: apply law that is closest to NY or apply the better law as determined by the court.
4. Unprovided for case (no state has interest): apply NY forum’s law,

Front 73

CONFLICTS

Choice of law: Torts: Neumeir

Back 73

Torts: Neumeier in a nutshell: apply the law of the place of injury UNLESS both parties live some place else.

Front 74

CONFLICTS

Choice of law: torts neumier
1. def. loss distribution
2. 4 situations.

Back 74

Loss distribution: for loss distribution rules, apply Babcock + Neumeier rules:

i. P and D domiciles in the same state: that state’s laws will apply

ii. P and D domiciled in different states: law where accident occurred applies IF it helps its citizen (P or D)

iii. P and D domiciled in different states and law where accident occurred doesn’t help its citizen: STILL apply the law of place of injury unless other juris has greater interest in the outcome. → this is an unprovided for case.

Front 75

CONFLICTS

Choice of law: torts neumier
1. rules agaisnt regulating conduct.

Back 75

Rules regulating conduct: For rules regulating conduct, apply law of place of injury

Front 76

CONFLICTS

Choice of law: torts neumier
1. analysis approach (3)

Back 76

Analysis approach:

1) is the law regulating conduct or loss distribution,
2) if conduct apply place of injury,
3) if loss distribution discuss, Babcok 5 method and 3 Neumeier rules

Front 77

CONFLICTS

Choice of Law: contracts
1. when can parties validly chose law of contract

Back 77

Contracts: Parties can choose any law for contract construction

a. Parties can choose law for contract validity if:

i. Not contrary to fundamental police of other state with greater interest

ii. Substantial relationship to parties or transaction

iii. Free of duress ( not adhesion K).

Front 78

CONFLICTS

Choice of Law: contracts
1. large K's
2. if no choice?

Back 78

Large Contracts: $250K= can choose NY law even if no connection. $1m- can choose NY as a forum = no dismissal for forum non-conveniens

If no choice: apply Babcock interest analysis → “state with the most significant relationship to the K”

Front 79

CONFLICTS

Choice of Law: insurance K

Back 79

Insurance K: all issues for rights and duties under an insurance policy are determined by the state where policy written

Front 80

CONFLICTS

Choice of Law:
1. real property
2. personal property
3. inheritance.

Back 80

Real property: law of the situs governs → where property is located

Personal property: situs rule unless intestate successes then use domicile at death.

Inheritance: non- NY Domiciliary, can chose NY law, in a will to dispose of NY assets. Applies to everything even if would oust a wife from an elective share.

Front 81

CONFLICTS

Choice of Law: family law
1. marriage valid in NY if (2 + exception)

Back 81

Family Law: marriage valid in NY IF:

a. Valid where performed OR

b. Void where performed due to technical defect that would have been valid in NY. Divorce governed by law of P’s domicile

c. Exception: if marriage would violate public policy even if valid where performed.

Front 82

CONFLICTS

Choice of Law: defenses, choice is procedural

Back 82

Defenses: to proposed choice of law:
a. Chosen law is procedural = forum court Will NOT apply procedural law of another state→

procedural: burden of proof, statute of limitations): →

substantive law: contributory negligence, statute of frauds, PER, Contribution among tortfeasors, Direct action statutes (let P sue insurer directly = NY considers it substantive)

Front 83

CONFLICTS

Choice of Law: defenses
1. borrowing statue exception
2. counter claims

Back 83

Borrowing statute exception: state will borrow and apply SoL where CoA arose, apply the shorter one! Avoids forum shopping. -→
NY WILL NOT borrow SoL when P is in NY.

Counter claims: the ability to bring counter claims; forum state will apply its own rules.

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CONFLICTS

choice of law: defenses
1. public policy
2. penal law.

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Law REALLY against public policy of forum state: must really be offenses must just unreasonable or unwise.

c. Penal law: no offenses of the public (criminal judgment or civil fine)

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CONFLICTS

fed. court in diversity uses?

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Use of state law in fed. courts: fed. court sitting in diversity must choice of law rules of the state in which it sits.

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CONFLICTS

notice and proof of foreign law:
1. sister state
2. federal law.
3. foreign country law.
4. if you dont know what the foreign law is?

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Notice and proof of foreign law:

a. Courts will take judicial notice of sister-state and federal law, but NOT law of a foreign country, law of foreign country must be plead and proved.

b. If foreign law cannot be determined, NY will apply NY law, so long as no interest is created

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AGENCY

what kind of capacity?

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Principal must have contractual capacity

agent needs only minimal mental capacity

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AGENCY

a person is disqualified from being an agent if (3)

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1. represents both parties
2. is not licensed, if required by law,
3, engages in self-dealing.

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AGENCY

is consideration or a writing required?

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consideration is not necessary

no writing is required (generally)

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AGENCY

remedies of Principal (4)

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remedies:
1. damages
2. disgorge secret profits
3. accounting
4. withhold compensation

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AGENCY

ways authority terminated

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ways authority terminated
1. lapse of time
2. happening of an event specified in the agreement
3. change in circumstances
4. breach of agent's fiduciary duty.
5. unilateral act of principal or agent
6. operation of law.

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AGENCY

effect of ratification

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effect of ratification
1. principal becomes bond on the K
2. agent is relieved of liability for breach of warranty
3. K given retroactive effect.

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AGENCY

Principal may not ratify a K when

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1. performance would be illegal at the time of ratification

2. after 3P withdraws

3. if there has been a material change in circumstances.

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AGENCY

liability for a disclosed principal exceptions (2)

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normally if disclosed P is liable except where

1. parties intended A would be liable
2. A makes implied warranty of authority.

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PARTNERSHIP

actual authority:
1. how is it ganted
2. unanimous votes required for (5)

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ACTUAL AUTHORITY

1. granted in partnership agreement of by consent of partners
2. Unanimous vote required in instances of:
1. arbitration
2. assignment to creditors
3. confession of judgment
4. disposition of goodwill
5. iterference with business.

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PARTNERSHIP

apparent authority to transfer partnership property

real property (5)

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real property
1. title in partnership name
2. title in name of few than all partners
3. title in name of all partners
4. mortgages
5. leases