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98 Cards in this Set
- Front
- Back
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what is needed for principal to be liable to 3rd party through agent.
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1. agent and principal must both consent that agent is under principal's control.
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what is the rule for capacity btwn agent and the third party.
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Principal must have a contractual capacity
>agent is just the middle man. |
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Can 17 yrs old harry disaffirm a contract mom made w/ Warner Brothers on his behalf.
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yes. b/c Harry is not of contractual age to be able to make a k
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Can mom validly appoint harry potter 17 yrs old as her agent.
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yes, because mom is of age to be able to make k.
it doesnt matter the middle man= he is just an agent. |
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what is the rule for agency law and writing.
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the agency law might not require the agreement to be in writing but the statutes of fraud might require the agreement to be in writing.
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is a writing required here.
Taylor wants James to be her agent. |
No-
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is a writing required here.
Taylor swift wants To hire mIke as her agent for 5 years. |
Yes, this requires a writing because the k is for more than 1 yr.
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what is the rule for statute of fraud.
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1. money 500 or more
2. k that cannot be performed in one yr 3. promising to pay debt of another 4. promise made in lieu of marriage. 5. land k |
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does writing apply.
Gilligan authorizes Mike to convey his island for .50 |
yes-b/c sOF apply to land k.
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what is not needed for agency relationship.
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Consideration.
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what is this the rule for express authority.
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xpress is when principal tells agent to act in Principal behalf.
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what happened here:
Frodo tells Gandalf, "Sell the right." Does Gandalf have express actual authority to sell the ring? |
Yes this is example of xpress authority.
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what happens if frodo tell the wrong person the sell the right thing.
or if Frodo tells the right person to sell the wrong thing. |
xpress authority still exists even when there is mistake.
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what is the rule for implied consent.
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Principal's conduct leads agent to believe that agent has authority.
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Beavis, Butthead's office manager buys supplies from KmaRt w/o permission. Beavis knows butthead has paid w/o objection.
--if Beavis keeps buyin from Kmart is butthead bound? |
yes, if butthead knew( endorsed) and did not object to Beavis(agent). This = implied consent/ reasonable belief.
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what is the rule for termination of agency relationship.
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1. death/incapacity/bankruptcy--unless power is irrevocable.
2. after specified time/event 3. by change of circumstances. 4. if agent acquires adverse interest (I.E joins competitor) 5. when agent say so 6. when principal say so |
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E gives B the power to sell his truck and says the power is irrevocable
--can he revoke. |
yes, this is not enough to make it irrevocable.
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E borrows money From B and says she can sell the truck if he defaults--can he now revoke.
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No because B now has interests.
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E authorizes B to sell his truck for a 15% of the commission.
Can he now revoke. |
Yes, there is not interest attached until B get commission.
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A promoter enters a lease on behalf of a corp. that has not yet been formed.
---can the corp. once formed adopt the lease.----- |
yes, once the corp is formed can adopt the lease.
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what is the diff. btwn ratification and adoption.
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Adoption is only liable from the adoption on.
Ratification = will be responsible for everything before and after the corp. took on the responsibility. |
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if the corp. does not adopt the lease, is the agent automatically relieved of liability.
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No---
1. agent will be liable for the lease 2. the corp will be liable to the agent. through vicarious liability. |
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what is owed from agent to the principal.
---Duty. |
1. Loyalty = must disclose all
2. Care = 3. Obedience = must follow principal reasonable instruction. 4. Fiduciary = even if agent not getting paid. |
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what is owed from principal to agent.
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Must compensate the agent (Unless gratuitous/not paid)
or reimburse and indemnify agent for losses. |
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what is the rule for responsibility for third party.
-----what is the exception-------- |
1. principal is always liable to 3party.
2. 3rd party is almost always liable to principal. -------------exception------------- principal not liable if 3party doesnt know that agent is acting for someone else. and --agent has special skills. |
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what happens in this scenario.
Pam hires Rachael to cater her wedding to Jim. IN Fact Rachel was acting on Behalf of Peg. Pam and no CluE. ---does Peg have any rights against pAm |
No, Peg was not disclosed and Agent Rachael has special skills.
therefore, neither Pam or Peg are responsible for Rachel actions. |
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what is the rule for 3rd party liability.
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3rd party is not liable to agent power of agency was couple with interest. (agent has his own interest.)
Agent is not liable to 3rd party ******unless*********** 3rd party does know who the principal is. --or A misrep. his authority. |
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what happens in these senario--who is liable.
I(lecture) accidentally knock over the podium and injure a buckeye sitting down front. Is barbri Liable. |
No- lecture is independent from barbri.
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Macy hires Lucy to demo. cosmetic at its tore on the weekends for 3 months for 2k. Lucy jabs trixie in the eye with an eyebrow pencil while chatting with ethel. Is Macy liable.
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She has characteristics of both.
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master-servant relationship.
Sue, driver for GM goes to the pub nine-blocks off of her route for a beer, returning to her route, Sue hits a pedestrian. Sue finishes by 5pm, the usual time. Is GM liable. |
No Sue was frolic and outside the scope of her employment.
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master-servant relationship
what is the rule for intentional tort. |
Master is responsible if it furthers his interests.
bouncer bouncing at the clubs. ******or******* 1. master ratifies (accepts everything retroactive) 2. Master authorizes Servant to commit the tort. |
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If GM is sued because of employee mistake.
and person suing let Employee go. Does this mean that Gm is also release. |
yes, for the tort feasor is jointly and severely liable = if one is released then both is released.
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what is the borrowed servant rule.
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if another barrows the servant from diff. master.
= servant is liable to the new master and the master to the servant. |
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borrowed servant rule.
Fred borrows Barney's full time gardener. While working in Fred's yard, the gardener negligently injures a passerby. WHo LiAble Original master or----- New Master. |
the new master because the servant is doing
1. his work 2. under his control 3. for his benefit. 4. with his tools |
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master servant.
Dom hires Dennis without checking his driving record. He has 2 DUI. Drunk on a frolic, Dennis injures Mr. Wilson. who is responsible and for what. |
DOm is responsible for negligent hiring.
Dennis = is liable for Mr. Wilson b/c he is not within the scope of employment. |
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what is the rule gen. partner.
what is element. |
Two or more person carrying on as a co-owner a business for profit.
element. 1. intent. 2. control 3. profit. |
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Rob bakery owes Pillsbury money, but Rob & the firm are insolvent. Pillsbury claims Rob's main squeeze, Cher is a partner because she receives 20% of the profits.
----what results----- |
cheri is presumed a partner by the court, and crt will not allow any other evidence to rebut this.
--all because she shared in the profit. |
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partner.
---what if the person receives profits as wages, rent, repayment of a debt, or interest on a loan ---what results. |
No presumption to be a partner.
--can try to show she is a partner but other evidence--- |
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partner.
---what if Cher were receiving 20% of gross receipts, not profits. |
No presumption that she is a partner.
---must be profits. |
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what is the requirement for a partnership.
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there is no writing requirement to from a partnership but the SOF might require one.
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what is the requirement if a partnership wants to file a lawsuit.
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1. partnership must file certificate with the clerk where it is located.
2. before commencing a lawsuit. |
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Ice T and Ice Cube wants to form a partnership for 2yrs. Is a writing required b4 the partnership can form.
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yes. the SOF requires this.
the partnership will last longer than 1 yr. |
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what is the rule for partnership by esttoppel
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if no partnership was formed, parties may still be liable as if they were/ are partners if there was reasonable reliance by 3rd party.
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Grace applies to the bank for a loan. Will lets Grace tell the bank that he's her partner, even though he's not. Is will liable to the bank if the money to Grace based on her statement.
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yes, b/c there was reasonable reliance that on the bank to believe will.
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can other creditor of Grace now come after will.
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Only if the statement was made publicly and herd by other creditors.
2. they reasonably relied |
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Can a tort claimant against Grace recover from WILL based on the statement.
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partnership by estoppel only applies to contract not tort.
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what is the rule for partnership property.
elements. |
1. intent.
2. who paid for it. 3. who uses. 4. who has the title. |
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what is the restriction of partner's rights
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very limited!--
partnership prop. can only use partnership prop. for partnership purposes***unless*** other partner consents. |
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partnership right.
suppose: Truck is partnership prop. Can A use it for her vacation. |
NO--unless all the partners allow it.
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If truck is partnership prop., can A pledge it as collateral for personal loan? Can A devise her interests in the truck to her husband? Can A's judgement creditor attach her interest in the truck?
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NO-No-No
--all of these thing dont allow outsiders to interfere with partnership prop. |
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can A assigns her interests in the partnership?
Can A devise her interests in the partnership to her husband? Can A judgement creditor attach ("charge") her interest in the partnership> |
1. yes.
2. yes 3. yes ---these are all alienable rights-- |
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Rachel, Phoebe and Monica from the RPM--Rachel contributes 60% of the capitol and others contribute 20% how will the profits be divided up. ( if not rule is written.)
--how will the partners share in losses. |
equally btwn all of the partners.
partners will share in the losses equally. |
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If the partnership agree that Rachael wont bear any loss--will she be safe from liability to 3rd party.
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partners can not limit liability to 3rd party unless the 3rd party allows it.
--they can only limit the agreement to the partners themselves. |
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Monica runs the partnership's day to day operation. Is she entitled to compensation.
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No, partner can only get compensation from the proceeds equally.
---it doesnt matter what they do. |
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Rach gets 60% of the profits; PHobe and Monica each 20%. Rach votes against selling the goods, Phoebe and Monica both vote to sell.
was the sell approved? |
yes in absent of a rule.
= majority rules. |
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Phoebe pays out 10k on the partner behalf. What is are the rights against RPM
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partnership must pay her back with interest.
she was acting for the benefit of the corp. --she is agent with the right to indemnification. |
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what are the duties of partners to each other.
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duty.
1. loyalty 2. full disclosure on demand. 3. fiduciary. |
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what is the rule for admission of new partners.
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unamious for a new partner to be admitted.
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Monica and Rachael wants to admit Doc. as a new partner, but Phoebe objects--what results.
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Doc does not become a partner.
need unanimous for new partner. |
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If doc. is admitted into the partnership debts incurred before he's admitted is he now liable.
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Yes, but only the extent of his interests--No liability on any amount greater than is interests in the partnership--
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what is the rule for apparent authority.
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may be created by a partner's title or partnership's authority conduct.
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Matt Stafford Knows that Monica is RPM Managing partner and has signed contracts for RPM anyway.
Did Monica have Actual authority to bind RPM to MAtt |
No the partners took away actual authority.
---all that she has now is apparent authority---- |
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what are the rules when dealing with agency principles.
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1. actual authority.
2. apparent author. 3. ratification/adoption 4. torts= only liable if within scope of the employment. |
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what is the rule for partnership obligation.
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partnership liable
= partners are liable. |
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k claims.
= if RPM breach its k with MaTT. Can he recover his damage form Rachael alone. |
No--he must get in line and joint all the partners as defendants.
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Phoebe injures MAtt while conducting RPM business. Can MaTT recover from Rachael alone.
--must matt try to get this from the partnership first. |
Yes, respondant superior/partnership.
once paid out Rachael can get indemnification from Phoebe. 2. No--he doesnt have to try to get the partnership 1st. |
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what is the rule for coveyance of real prop. for agency.
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Names: if the names in the title and on the conveyance match
= title passes to grantee = if they dont, only the partnership's equitable interest passes. |
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what happens when title of the partnership prop. is in the partners name.
Can a partner conveys it in her own name. |
No-
names dont match so only the partnership's equitable interest will pass to the grantee. |
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what happens if the partnership did not have auth. to give prop. away.
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If the partner had no auth., the auth. can get the prop. back from the initial transferee (who should've checked on it), but not from subsequent BUyer Good Faith for value w/o notice.
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what are the causes for dissolution.
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1. end of definite term
2. completion of project 3. partner of express will or written withdraw. |
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detective S and Monk form a partnership to run a bar. Can Monk dissolve after a week.
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YEs.
--partnership has express will to terminate. = most partnerships are at will (Only exceptions = definite terms or particular undertakings) |
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If their partnership is for a definite term or to accomplish a particular undertaking, can MONK dissolve before the term is up or before the undertaking is done.
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yes--but he will be liable under the k.
--after all he agreed to be under the k until the underlying thing is done. |
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what if both of the partners agree to dissolve before the term is up or the undertaking is completed.
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No breach if all of the partners agree and consent.
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can A partner continue to have apparent auth. after the dissolution even if he is not winding up,
--how can the partnership avoid liability. |
Partners can avoid liability by providing notice of dissolution to creditors who were unaware of the dissolution.
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what is prior creditors entitled to?
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personal notice
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what is other who knew about partnership before dissolution entitle to---
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a newspaper notice.
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what are the those who didnt know the partnership before the dissolution entitled to.
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no notice at all
no reason to protect them. |
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If RPM is liable to matt on a post dissolution, can he recover from rachael.
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yes-
joint liability in k joint and several liability in tort. |
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what is the only exception when a partner has the right to contribution.
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if the dissolution was caused by partner's
1. express will 2. death 3. bankruptcy. |
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if Phe brought supplies for RPM on credit after the partnership has been terminated for 5 yrs--Can phe get contribution from the other partners after she pays the debt.
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No
Phe is presumed to know when the partnership is up. --since she is a partner. |
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if phe brought supplies for RPM on credit after Monica dissolves RPM by her express will. Can Phe get contribution if she pays the debt.
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Yes-unless Phe knew about the dissolution.
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if phe brought supplies for RPM on credit and What if the dissolution was caused by monica's death or bankruptcy.
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yes- monica can get contribution if she was unaware of what is going on.
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Distribution of partnership.
100k--- 3rd party has 30k debt Rach--5k Monica- 5k Rach- loaned RPM 15k who gets what and when. |
creditor gets 30k
Rach gets 15k rach get 5k - capital monica get 5k- capital 45k is profit to be split among the 3 |
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what happens if RPM only had 33k to dissolve.
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1. 3rd party gets 30k owe
2. 3k goes to rach for loan of 15k and the losses will be split. |
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if phe and partnership are both broke. if Phe creditors and partnership creditors asserts claim against the partnership asset who has priority.
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partnership creditors has priority.
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what is the diff btw MI creditors and Fed Creditors.
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MI creditors has specific right to specific prop.
Fed. = both set of creditors (private and partners) have equal rights to the prop. |
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what is needed for partnership to continue after dissolution.
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1. all left partners must consent.
2. the creditors only become creditors of continuing partners 3. if the partners cant agree on what a withdrawing partners is to be paid he gets his interests a. as of date of dissolution plus b. either market rate of interest or c. pro rata share of profits. |
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what is the wrongful dissolution liable for
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1. other partners for breach of k
2. and not compensated for partners good will |
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what is the rule for limited liability for partners.
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torts = partners not variously liable for tort of another partner or LLP employee unless directly supervising them.
2. contract= partners have joint liability on contracts. |
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Rach and Phoe and Monica form LLP. Acting in ordinary course of business PHoebe negligently injures Finn who is responsible.
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1. Phoebe
2. LLP 3. not monica or Rach = unless they were directly supervising her. |
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what is the rule for limited partnership.
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only liable for the investment you put in.
unless---------has control |
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Chef tom forms L.P to run a bistro. Padma invests 50k as limited partner. the bistro flops. All the money including Padma's 50k is gone. Is padma liable for L.P debt
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No--only liable for the amount that they placed in.
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what if Additionally to being a limited partner, Padma were also employed by the L.P as Maitress'd? advising the gen. partner? what if she also guaranteed a note for the L.P
--what if she did all this and more. |
No-still only liable for what she contributed.
"safe harbor" ---------if more---------------- this would = control and be liable for more |
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what is the caveat for limited liability partner.
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if:
1. limited liability partner does the same thing as gen. manager = liable just like gen. manager. 2. if not= liable to creditors who transacted business with L.P with ACTUAL KNOWLEDGE of her participation in control |
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what happens when on one occasion Padma signed for a loan for L.P. Can the bank recover from her personally.
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yes because the bank had actual knowledge of her participation and control.
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Can now the other creditors get to Padma personally.
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yes, if they too had actual knowledge of her control.
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what are ways that a person in the L.P can be personally liable.
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1. if limited partner let her name be included in the partnership without the L.P.
= liable to creditor who did not know she was a limited partner. 2. by not filing it as a limited partnership. |
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what is the diff. btwn.
GP LLP LP LLC |
GP=
tort = joint and several k = joint ---liable for both----- LLP = tort = non (unless supervised) k = joint LP = tort = gen. Joint and several L.p = none k = gen. joint L.P non (unless control) LLC = tort = none ( unless directly supervising) k = none |
