Agency & Partnership

Front 1

Vicarious liability

Back 1

1. Is there a principal/agent relationship?

2. Was the agent acting within scope of relationship

Front 2

Principal/agent relationship

Back 2

Assent: must be mutual assent between p and a

Benefit: must be for the principal's benefit or in furtherance of P's objective

Control: the P must supervise the method and manner of A's actions

Front 3

Sub-agents

Back 3

Must have ABC

Most likely do not have Control

Front 4

Borrowed Agent

Back 4

Principal bothers an agent from another principal

Need ABC

Probably do not have A and C

Front 5

Independent contractors

Back 5

Not agents because no control.

Work for themselves.

Front 6

Independent contractors and vicarious liability

Back 6

Generally not vicariously liable, unless:

1. ultra hazardous activity

2. estoppel

Front 7

Scope of principal/agent relationship

Back 7

Frolic: major deviation from employment - NOT WITHIN SCOPE

Detour: minor deviation - within scope

Front 8

Disqualification of agent

Back 8

if breach fiduciary duties

-self deals
-usurps corporate opportunity
-secret profit

Front 9

Intentional torts

Back 9

not liable for intentional torts unless:

1. Principal authorized activity
2. Necessary to carry out job
3. Motive is to benefit principal

Front 10

Actual Express authority

Back 10

Principal actually expresses the authority to act

Revocable by death or unilateral act of both parties

Can be oral and secret

Must be in writing if for land and more than one year

Front 11

Actual Implied Authority

Back 11

Necessary to carry out job

Implied by prior dealings

Inherent in job title

Front 12

Apparent Authority

Back 12

1. principal cloaked the agent with authority
2. 3P relied on it

Secret limiting instruction

Lingering authority

Front 13

Ratification

Back 13

Principal gives authority after the contract is entered into if:

1. P accepts benefits of K
2. P does not alter terms of K
3. P has knowledge of material facts in K

Front 14

Duties owed by agent to principal

Back 14

Duty of care
Duty of obedience
Duty of loyalty

Front 15

General Partnership

Back 15

When two or more people associate with the intent to make a profit

No formalities

Partnership if sharing profits and losses.

Front 16

Liabilities of general partner to 3P

Back 16

Agency principles apply

GP liable for each partner's torts in the scope of the partnership business and for each partner's authorized contracts

Front 17

General Partner Liability

Back 17

GP is personally liable for the debts, torts and breach of K from partnership and all other partners

Front 18

Incoming partners

Back 18

liable for prior obligations to the extent of capital contributions

Front 19

Dissociating partner

Back 19

liable on all obligations while in partnership, liable on future obligations until death or notice to creditors.

Front 20

General Partnership Liability by Estoppel

Back 20

If the GP holds itself out as a partner of a partnership, they will be liable to all 3Ps who rely on that as if the GP exists

Front 21

Duties of the General Partner

Back 21

Duty of care

NO usurping opportunities
NO self dealing
NO secret profit

Front 22

Partners' Right in the partnership

Property & Liquidity

Back 22

Specific Partnership assets - GP property - not transferrable - illiquid

Share of Profits & Surplus: personal property - transferrable - liquid

Share in management - general partnership property- non transferrable - illiquid

Front 23

Management in General Partnership

Back 23

Unless stated otherwise, equal management

Front 24

Salary in GP

Back 24

Unless otherwise stated - no salary except for winding up

Front 25

Profits and Losses in GP

Back 25

Unless otherwise stated,

profits - distributed equally

losses - distributed the same as profits are distributed

Front 26

General Partnership
dissolution
termination
winding up

Back 26

Dissolution: withdrawal of a partner or any material change in GP. Not actually the end.

Termination: the end

Winding up: assets liquidate and satisfy creditors and partners

Front 27

Priority of distribution

Back 27

1. outside creditors
2. inside creditors
3. capital contribution
4. profits and surplus

Front 28

Continuance of business after dissolution

Back 28

can continue if

1. partner is expelled
2. partners agree
3. GP is dissolved in contravention of the agreement

Front 29

GP Liability after dissolution

Back 29

Old business: liable to satisfy all old business

New Business: liable until notice of withdrawal

Front 30

Limited Partnership

Back 30

at least one GP and one LP

GP: management - personally liable

LP: not personally liable - no management - no naming on partnership

Front 31

RLLP

Back 31

professional

limited liability

personally liable for your own malpractice

Front 32

LLC

Back 32

taxed like a Gp

liability like corp