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51 Cards in this Set
- Front
- Back
Agency Problems (3) |
1. Liability of Principal to 3Ps for Torts of an Agent; 2. Liability of Principal to 3P for Contracts entered into by Agent; 3. Duties which Agents owe to Principals |
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Test for Liability of P to 3P for tort of A |
1. Does a Principal Agent relationship exist?; 2. Was the tort within the scope of the relationship? |
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Principal-Agent Relationship, definition |
assent (of both), benefit (to P), control (of P) |
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Assent, definition |
= informal agreement b/w P and A |
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Benefit, definition |
= A's conduct is for P's benefit |
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Control, definition |
= P must have the right to control A by having the power to supervise the manner of A's performance. |
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Does a P have vicarious liability for sub-agents and borrowed agents? |
Generally, no. Sub-agents: usually a helper to A; there is NO ASSENT b/w P and SA. Borrowed agents: P has NO right to CONTROL BA |
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What are Independent Contractors and do P's have Vicarious Liability (VL)? |
IC ∉ Agent b/c no power to supervice manner of performance. NO VL, BUT there are 2 exceptions: 1. Ultra-Hazardous Activity 2. Estoppel (holding out IC as A) |
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Scope of Relationship Factors |
1. "Of the kind" of job (no IT); 2. "on the job" (detour v. frolic); 3. A intended to benefit P (even in part). |
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Scope, Frolic v. Detour |
Frolic = new & ind. journey; Detour = mere departure from assigned task |
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Agency and Intentional Torts |
IT are usu w/o scope. EXCEPTIONS, (EG, bouncer) where conduct was: 1. authorized; 2. natural (to job); 3. motivated by desire to serve P. |
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Liability of P to 3P for Ks entered into by A, test |
P is liable for Ks entered into by it’s A if P authorized A to enter into the K |
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Liability of P to 3P for Ks entered into by A, starting an essay |
"P will be liably only on its authorized Ks. In this case…" "Therefore, there will be [no] liability on this authorized K." |
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Liability of P to 3P for Ks entered into by A, general rules |
If no authority → P not liable on K; A is. If authority → P is liable on K; not A. EXCEPTION: if P is partially disclosed (only P’s ID is concealed) or undisclosed (fact o P concealed), Authorized A may be liable at the election of 3P. |
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Kinds of Authority (4) |
- Actual Express; - Actual Implied; - Apparent; - Ratification |
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Actual Express |
Oral (except land > 1yr), private, narrowly construed. |
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How can Actual Express authority be revoked? |
1. Unilateral act of either party, or; 2. Death or of P; 3. Incapacity of P, UNLESS P gives A a “durable power of attorney” (written expression of authority to enter into transaction) |
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Actual Implied |
= no words; A reasonably believes P has given authority b/c of necessity, custom or prior dealings |
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Actual Implied, Necessity |
There is an implied authority to do all tasks which are necessary to accomplish an expressly authorized task. |
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Actual Implied, Custom |
There is an implied authority to do all tasks which are customarily performed by a person w/ A's title or position. |
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Actual Implied, Prior Dealings |
There is an implied authority to do all tasks which A believes to be authorized to do from prior acquiesance from P (during prior dealings) |
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Apparent |
1. P cloaked A in appearance of authority; and 2. 3P relied on that appearance of authority. |
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Apparent, Secret Limiting Instruction |
where A has actual authority but P has limited it, if 3P unknowingly relies on A, P is liable though A's actions were outside the scope. |
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Apparent, Lingering Authority |
where actual authority has been terminated but A continues to act on P’s behalf. P is liable until/unless P notifies 3Ps |
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Ratification |
Authority can be granted after the K has been entered if: 1. P has knowledge of all material fact regarding the K, AND 2. P accepts it's benefits. NY DISTINCTION: ratification cannot alter terms of K; must be complete. |
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Duties which Agents owe to Principals (3) |
Duty to: 1. exercise reasonable care; 2. obey reasonable instructions (∉ lie or break law); 3. loyalty. |
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How can an Agent breach his duty of loyalty? (3) |
1. Self-Dealing: A cannot receive a benefit to the detriment of P; 2. Usurping P’s opportunity; OR 3. Secret profits. |
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What are the issue areas of partnerships? |
1. Partnership Formation; 2. Liabilities (of partners to 3P; b/w partners); 3. Partnership dissolution |
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General Partnership, definition. |
= association of 2+ persons who are carrying-on as co-owners of a biz for profit. |
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General Partnership, prima facie evidence of |
the contribution of money or services in return for a share of profits is prima facie evidence of a general partnership in NY. |
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General Partnership, formation |
none |
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General Partnership, starting an essay |
"As a rule, general partners are liable for all partnership obligations including co-partner torts. In this case…" |
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General Partners, liability |
Partners are agents of the partnership for carrying on usual partnership business; thus each individual general partner is personally liable for all obligations of the partnership. |
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Incoming Gen Partners, liability |
NOT liable for prior debt (usu), BUT any money paid into the partnership by the new partners can be used to satisfy those prior debts. |
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Outgoing Gen Partners, liability |
YES, retain liability on future debts until the die, UNLESS, notice of their withdrawal has been given to all known and even potential creditors. |
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General Partners, liability by estoppel |
one who represents to a 3P that a partnership exists will be liable as if a partnership does exist. |
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A partnership is bound by the following done by partners |
- Ks , w/ authority; - Torts, w/in scope of job |
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Limited Partnership, definition. |
= 1 general partner + 1 limited partner |
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Limited Partnership, formation |
File limited partnership that includes names of all general partners |
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Limited Partnership, general partner |
Liability + control; liable for all limited partnership obligations but also have right to manage a business |
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Limited Partnership, limited partner |
Limited liability; only liable for their own contributions. NY: may not manage the business or forfeit LP status |
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Registered Limited Liability Partnership, Formation |
Register w/ state as RLLP and indicate which profession you will be practicing |
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Registered Limited Liability Partnership, Liability |
No partner is liable for the partnership’s debts and obligations |
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Limited Liability Company, Formation |
File articles of organization w/ State. NY: publish summary of articles once/week for 6 weeks in a row in 2 newspapers |
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Limited Liability Company, Liability |
Members who are owners are not liable for debts and obligations of the company; Limited Liability, Tax, Liquidity, Life (events of dissolution) |
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Partner Inter-relationship? |
Partners are fiduciaries of each other and the partnership (duty of loyalty w/ pertinent remedies) |
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Partner's Share in Profits |
Share of profits and surpus is transferrable. No salary, but are compensated for winding up biz. |
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Partner's Share in Profits, absent a contract |
Profits shared equally; AND Losses shared like profits |
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Partner's Share in Specific Partnership Assets |
Equipment, land, leases owned (bought) by partnership are not transferrable via partner to 3P w/o partnership authority. |
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Partner's Share in Management |
Right to vote is not transferable via partner to 3P; 1 partner = 1 vote (no matter the contribution) |
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Priority of distribution |
All debts must be repaid, but in this order: 1. Outside Trade Creditors; 2. Inside Partner loans; 3. Capital Contributions. NOTE: Losses and profits shared equally by partners |