Indiana Agency Partnership

Front 1

Agency

Back 1

(i) Agency is a consensual relationship

(ii) requiring a manifestation of consent

(iii) by principle (P) that (A) agent

(iv) shall act on (P)'s behalf

(v) and consent by (A) to so act under (P)'s control

Front 2

Capacity

Back 2

P - must have contractual capacity

A- need not have contractual capacity

Front 3

Under agency law: does there need to be a writing?

Back 3

NO but there are exceptions

1. (k)'s that cant be performed in under a yr.

2. (k)'s for sale of real property

Front 4

contract under agency does not require_____________________

Back 4

consideration

Front 5

Agency purpose must be _______________

Back 5

legal

Front 6

4 ways agency can be created

Back 6

1. Actual

2. Apparent

3. ratification

4. estopple

Front 7

creation of actual authority is either

Back 7

Express: (ex: Nina tells Dom to sell her couch)

Implied: (ex: P's conduct lead's A to believe she has authority)

Front 8

Way's actual authority can terminate

Back 8

1. after a specific time , reasonable time

2. by change of circumstances

3. by change of law (making the act illegal)

4. Whenever A say's "no"

5. Whenever P says "no" ***unless couple with an interest*** then P cant just say NO

6. death, incapacity, or bankrupt

Front 9

Apparent Authority

Back 9

is created when

(i) (P) leads - 3rd party to think

(ii) (A) has authority, though (A) doesn't

(iii) but 3rd party believes it

ex: P holds A out as an agent and 3rd party relies

ex: Reasonable belief is created by P's manifestation

Front 10

Something to know about Apparent Authority

Back 10

it can linger even after Actual Authority terminates

Front 11

how can you destroy apparent authority?

Back 11

you have to make it known to the possible 3rd party that A does not have authority anymore

Front 12

Agency by estopple

Back 12

a. P must have made a FALSE or CONCEALED material fact with Intent for 3rd party to rely

b. 3rd party must have changed his position in reasonable reliance upon P's representations

Front 13

RATIFICATION: IF a contracts w/out actual or apparent authority, can P still ratify it?

Back 13

Yes P can ratify by

1. expressly affirming

2. accepting its benefit

3. or sueing a 3rd party on it

Front 14

Requirements for ratification:

Back 14

1. (A) was acting on (P)'s behalf

2. (P) had knowledge of all facts

3. (P) must accept the entire K

4. (P) has contractual capacity

a. at time of ratification

b. and at time of orginal transaction

5. Requires some manifestation of intent by (P)

Front 15

What is Implied authority

Back 15

authority reasonably necessary to accomplish the purpose of an established agency

can arise by

1. custom

2. title

3. or task

Front 16

can (A) delegate to a (sub-agent?)

Back 16

Only if P consents or in the following 4 circumstances

1. if the agent is unable to lawfully perform duties personally

2. there's an emergency & A cant contact P

3. Established by usage

4. Its a mechanical act

Front 17

Duties that A owes P

Back 17

DUTY OF:

1. fiduciary

2. loyalty - no competition or dual agency

3. Reasonable care

4. obedience

5. duty to indemnify

6. preserve trade secrets

Front 18

who is P liable to ?

Back 18

P is always liable to 3rd parties

Front 19

who is 3rd party liable to

Back 19

3rd party is always liable to

- A disclosed (p), or a partially disclosed (P),

or an undisclosed

Front 20

Is the A (agent) liable to 3rd parties ?

Back 20

A is not liable unless

P is an undisclosed or partially disclosed or

A breached her "warranty of authority"

Front 21

is a (T) 3rd party liable to an agent

Back 21

No, 3rd party is not liable to A unless

- A has an interest in the subject matter

Front 22

liability in tort refers to : Doctrine of respondeat superior

Back 22

vicarious liability ( to protect an innocent 3rd party)

the issue is :

whether a tort was commited by SERVANT acting within the SCOPE OF EMPLOYMENT ? if so MASTER IS LIABLE to the injured party

Front 23

Indiana considers the following "Late Night" factors to determine whether a tort feasor is

a SERVANT or an INDEPENDENT CONTRACTOR

Back 23

"CBS took letterman and paul shaffer beyond Carson"

1. control of detail - does P have the right?

2. Business - is A's business distinct

3. specialist - is A a specialist

4. Tools and work place - who provides?

5. Length of time - short or long?

6. Payment method - By time or job

7. skill required for job

8. belief & intent

9. contact provisions

Front 24

(S) servants intentional torts are outside of the scope of employment UNLESS:

Back 24

a. force is used to futher M's business (bouncer)

b. M ratifies the use of force (nice job)

c. M authorized S to commit an intentional tort

(ex: misrepresentation)

Front 25

Master and servant liability?

Back 25

M and S are both Jointly and serverally liable

BUT the 3rd party can only recover 1 total satisfaction

Front 26

if (S) deviates from the normal tasks, how substantial the deviation was will determine whether it was within the scope of employment or not

Back 26

Frolic: is a substantial deviation and it - OUTSIDE SCOPE OF EMPLOYMENT

Detour: Is a minor deviation and it is - WITHIN THE SCOPE OF EMPLOYMENT

Front 27

A principle / master cannot avoid liability for acts of independant contractor if :

Back 27

1. work performed is inherently dangerous

2. P is charged by law or (k) with a specific duty of care

3. the act performed creates a nuisance

4. it is reasonably forseeable that the act will cause injury

5 the act performed is illegal

Front 28

PARTNERSHIP FORMATION

Back 28

according to the Indiana Uniform Partnership Act a (PS) is

(i) an association of two or more persons

(ii) with the intent to carry on

(iii) as co-owners as a business for profit

Front 29

whats is a rebuttable presumption that the courts can make?

Back 29

Reciept of a % of a profit is PRIMA FACIE evidence that the partership exists

Front 30

Is a writing required for a partnership

Back 30

No writing is generally needed but may be required by the statute of frauds if it last for more than a year

Front 31

if no PS has been formed but parties have held themselves out to be a PS (implied/express) then are they liable to 3rd parties

Back 31

Under partnership by estopple , a PS will be liable to 3rd parties who have RELIED on them

Front 32

whether property is owned by the PS is determined by the intent of the parties

Back 32

"FITUPS"

F - Funds used to purchase?

I - Improvements and repairs - who paid?

T- Title (to the property)

U- Use (of the property - idvl. or ps)

P - Purpose of the ps

S - Status (on the ps books)

Front 33

can a creditor come after ps property?

Back 33

A creditor of the PS may attach ps property to statisfy debts

Once the PS assets are exhausted creditor becomes a creditor of Individual Partner

but PS prop is not subject to execution to satisfy personal debt of a partner

Front 34

Does a partner have right to possession or use of ps property?

Back 34

A partner has NO right to possession or USE of PS property except as right to use it for PS purposes

Front 35

A partners interest in the partnership itself

Back 35

1. a partner has a right to receive a "pro-rata share" of the profits

2. Passed to heirs

3. is personal

4. is PRESUMED EQUAL among partners unless agreed otherwise

Front 36

Relations among partners

Back 36

1. profits and losses: is equal unless othewise agreed

2. Remuneration: no compensation for services unless otherwise agreed

3. Management Rts: Equal unless otherwise agreed

4. Indemnification: Each P has a right to amount due

5. Fiduciaries: partners are fiduciaries (owe duty of loyalty

Front 37

duties of partners;

Back 37

partners owe

1. duty of care

2. duty of loyalty (no competing or usurping)

3. duty to render full information about PS on demand

4. A duty to account for any profits received

Front 38

can partners inspect the books?

Back 38

yes, partners can inspect the books and get a formal accounting when Just & reasonable

Front 39

what does a partnership require to admit new partners?

Back 39

Unanimous consent

Front 40

If someone leaves the partnership are they still liable for ps debts?

Back 40

yes unless released by creditor (express or implied)

Front 41

if one partner causes damage to remaining partners, what legal action is available?

Back 41

General rule: as between partners for damages there is no legal action unless

1. there is wrongful exlcusion

2. breach of a fiduciary duty

3. if the PS agreement allows for it

4. if its just and reasonable

Front 42

what equitable remedies are available against breaching partners?

Back 42

constructive trust action for recission of the agreement

Front 43

What principles apply as between partnerships and 3rd parties?

Back 43

Agency principles

the PS is the P and each partner is an A

Front 44

Acutual authority can be conferred on a Partner by the PS (principle) - 3 ways

Back 44

1. PS agreement

2. majority vote

3. statute

Front 45

Apparent authority is created by:

Back 45

1. PS title

2. the way the PS has conducted Biz

3. the custom of similar firms in the area that conduct business

Front 46

liability for PS obligations

Back 46

the PS itself is liable

on CONTRACT CLAIMS: Partners have joint liability

on TORT CLAIMS: partners: Partners are jointly and severally liable

Front 47

Starting the process to end the partnership

3 things

Back 47

1. dissolution

2. winding up

3. termination

Front 48

Causes for dissolution

Back 48

1. end of definite term

2. accomplishment of a particular undertaking

3. A partners express will /withdrawl

4. Expulsion of a partner pursuant to the agreement

5. operation of law

- death, bankruptcy, unlawfulness

Front 49

when does winding up occur:

Back 49

once dissolution events occur a partner who has not wrongfully dissolved is entitled to wind up

here :

debts will be paid, transactions completed, surplus paid out , Prior notice to creditors, notice by publication for 3rd parties

Front 50

Even though a PS is going through dissolution are they still liable ?

Back 50

Generally YES

and a partner may continue to have apparent authority to act for the PS after dissolution even if he is not winding up PS affairs

Front 51

What happens if the PS fails to give proper notice of dissolution?

Back 51

it will be liable on the post - dissolution obligation unless the 3rd party fails unless the 3rd party was aware

Front 52

can a partner get "contribution after dissolution?

Back 52

for example , contribution for paying a debt? generally NO

Front 53

how does the PS assets get distributed after dissolution

Back 53

1. 3rd party creditors

2. to partners other than for capital and profits

3. to partners for return of capital

4. to partners to split evenly

Front 54

can a PS continue after dissolution?

Back 54

yes if :

1. all partners who have not wrongfully dissolved consent

2. creditors of dissolved PS become creditors of new PS

3. Continuing P's must compensate the P who withdrew

a. agreed upon amount

b. and a pro rata share of profits

Front 55

A partner who wrongfully dissolves is only entitled to :

Back 55

compensation for

1. net value of PS interest

and is liable for

1. any damages