Agency Barbri

Front 1

What are the hallmarks/keys of an agency relationship?

Back 1

consent & control

Front 2

In an agency relationship, what must exist?

Back 2

* Principal (P) must have capacity (not A)
* Writing not req'd unless SoF
* Authority --- actual/implied/apparent/ratified later/adoption

Front 3

What makes agency irrevocable?

Back 3

coupled w/interest (like being a secured creditor)

Front 4

What is the key to apparent authority?

Back 4

viewed from THIRD PARTY's pt of view. Reas belief must be created by P, not just A.

Front 5

what is ratification?

Back 5

P ratifies previously non-existing authority by accepting benefit of contract or suing on the contract.

Front 6

What are reqts of ratifying something later?

Back 6

P has knowl of all material facts; must accept ENTIRE transaxn; must have had capacity at time of orig contract too

Front 7

What happens if corporation adopts a lease that promoter entered on its behalf? (what happens to liability)

Back 7

corp is liable too, but promoter still is also

Front 8

What is a third party's liability?

Back 8

To P (i.e. P can sue the third party), unless A has special skills *and* P is undisclosed.

Front 9

When is "master" liable for what servant did? what is the test?

Back 9

Was tort committed by a servant acting w/n scope of employment? Then master & servant are joint & severally liable.

(test for servant is same as employee vs indep contractor for tax purposes... skill req'd, employer's ctrl of eqipment/hours/tools, long-term, etc.)

Front 10

Is principle liable to a third party on a contract that an agent entered? What are the relevant questions?

Back 10

Did the agent have axl/apparent authority @ time of K, or did principal ratify/adopt later?

Front 11

Is an employer liable for a tort committed by an employee?

Back 11

Was a tort committed by a servant in scope of employment?

Front 12

What is a partnership?

Back 12

Assoc of 2+ co-owners. Only need to be in writing if SoF requires it.

Front 13

How do you determine who is a partner?

Back 13

Factors (not reqts): capital contrib'd, control, sharing profits (but NOT if gross receipts or in lieu of wages)

Front 14

What is a joint venture?

Back 14

Partnership w/an express agreement re: sharing of losses.

Front 15

Estoppel --- def

Back 15

When 3rd party reasonably relies, parties may be liable as if they are partners.

Front 16

A buys truck in her name w/her money. AB uses the truck for deliveries. Does truck belong to A or to AB partnership?

Back 16

A... "as long as no indic acting for a partnership"

Front 17

Rights in partnership property

Back 17

* the partnership itself has unrestricted rights in the property.

* but the partner only has rights for partnership purps

Front 18

Can a partner transfer his share of a partnership's profits?

Back 18

YES, can assign or devise. "Partner may transfer econ int in partnership just as any other econ asset." But transferee does NOT become partner.

Front 19

partnership statutes

Back 19

default BUT partnership agreement supersedes if different

Front 20

How are profits split in a partnership? (default rule)

Back 20

equally, NOT per capital contrib

Front 21

How are biz matters decided in a partnership?

Back 21

by majority interest

Front 22

What is required to admit a new partner?

Back 22

unanimity

Front 23

If a new partner is admitted, is he liable for debts incurred in partnership B4 his admission?

Back 23

YES, but is cut some slack. No personal liability on preexisting debts.

Front 24

How does an LLP work?

Back 24

No liability on contracts or others' torts unless directly involved, supervising tortfeasor, or aware.

Front 25

How form an LLP?

Back 25

File certif of formation w/Sec State & pay annual fee

Name must include limited liability partnership

Buy @ least 100k in liabil ins or segregate 100k of funds.

Front 26

What is a withdrawn partner's liability?

Back 26

To existing creditors unless released. To subseq creditors unaware of w/drawal (but can notify them & not have liability). To other partners if withdrawal's wrongful.

Front 27

If partnership is formed to buy land and sell of lots, and 1 partner w/draws before last lot sold, what happens?

Back 27

That partner is liable for breach of K, because partnership was to "accomp an undertaking/built in ending."

Front 28

When can partner w/draw if partnership is formed to run a bar or something similar w/o an ending time?

Back 28

It's an at will partnership. can leave anytime w/o penalty.

Front 29

distributing partnership assets when winding up the partnership... How do you do thsi?

Back 29

1st pay off creditors and all partners' loans to the partnership. Then each partner gets: their capital contribution + their equal share of the profits - equal share of losses.

If assets insuiffic to cover liablities, the creditors split the assets avail pro rata (by % of what they loaned of the total loans).

Front 30

Limited Partnership (LP)... What is it and how is it formed & what is the liability?

Back 30

General partners (generally liable) + limited partners (liabil limited to their investment)

Formed by filing certif of formation w/Sec State + fee with written agreement; name included Limited Partnership/Limited/LP.

Limited partners can only lose their cap contrib. They lose this protexn if they take part in control, but this does NOT include being employed, advising, or guaranteeing a note.

Front 31

In an LP, what is the test to see if a limited partner is exerting control req'd to increase liability?

Back 31

Reliance Test. "Creditor reasonably believed she was a general partner based on her conduct."

Front 32

How are general partners in an LP laible?

Back 32

jointly & severally.

Front 33

What is an LLLP?

Back 33

Shields general & limited partners. Limited Liabil LImited Partnership.

Front 34

What is an LLC and how is it formed?

Back 34

Formed by filing certif of formation wiht Sec; name includes LLC/LC;if profesl LLC, must be licensed; profits/losses split in proportion to cap contrib.

No vicarious liability for what other members of LLC do.

Front 35

What are the best types of partnerships to form?

Back 35

LLP and LLC. Both have no liability, and LLP only if dir involved/supervising tortfeasor/aware.

Front 36

Which partnerships have joint & several liability?

Back 36

LP (for gen partners) and GP

Front 37

What is tax benefit of partnership?

Back 37

Income passed thru to owners, not taxed twice like it is in a corporation.