Md Bar 2013 - Agency And Partnership

Front 1

What is the basis of Vicarious Liability

Back 1

Status as a Principal

Front 2

Types of Agents

Back 2

Servant and Independent Contractor

Front 3

Servants

Back 3

The employer has the right to control

Front 4

Factors for highly indicative of Servant (6)

Back 4

Salaried
Low skill
Not own business
Long term worker
Has no tools
Business location same as Principal

Front 5

Factors highly indicative of Independent Contractor (IC) (6)

Back 5

Paid by the Job
High Skill
Has own Business
Has own tools
Short term worker
Different business location

Front 6

Principal vicariously liable for IC

Back 6

General Rule is NO

Front 7

When is Principal Vicariously Liable for IC (2)

Back 7

Work inherently dangerous
Non-delegable duty

Front 8

Non-delegable duty

Back 8

Landlord's duty to repair
collateral repossession

Front 9

When is Principal vicariously liable for Servant

Back 9

When tort was done within the scope of employment

Front 10

Test for Scope of Employment (4)

Back 10

What was servant doing
When was he doing it
Where was he doing it
Why was he doing

Front 11

Commuting from Home to Work

Back 11

Generally not within the scope of employment

Front 12

When is commuting from home to work within scope of employment?

Back 12

If employer requires employee to bring own vehicle to work & use it at work during the day.

Front 13

Vicarious liability for intentional tort

Back 13

use same scope of employment analysis (What, why, when, where)

Front 14

Borrowed Servant Doctrine

Back 14

Test- who controlled servant at the time of the tort.
Servant creates liability for 1 person

Front 15

Borrowed servant doctrine in Maryland

Back 15

Both employers will be liable (lender employer and borrower employer)

Front 16

Types of authority

Back 16

Actual (express or implied)
Apparent
Ratification

Front 17

Actual Authority

Back 17

Authority that agent reasonably thinks that he possesses as a result of communications from or actions by the Principal. (Express or Implied)

Front 18

Express (actual) Authority

Back 18

Authority contained within the "four corners" corners of the agency agreement. i.e whether oral or written from the P to the A.

Front 19

Implied (actual) Authority

Back 19

Authority that the agent (not TP) reasonably believes he has as a result of the actions of the Principal

Front 20

Reasonableness for Implied Authority (4)

Back 20

1. Necessary means to accomplish express authority.
2. Custom & usage
3. Prior Acquiescence
4.Emergency or Necessity

Front 21

Apparent Authority

Back 21

Where the Principal holds out another as possessing certain authority, thereby inducing others reasonably to believe that authority exists

Front 22

Reasonable Reliance

Back 22

A TP who knows of the limitations of the agents authority, or who should have inquired with the P cannot be said to have reasonably relied on an appearance of authority beyond those limits

Front 23

Types of Apparent Authority (4)

Back 23

1.Imposters (P neglgently permits)
2. Lingering Authority- may need to give notice to TP
3.Exceeding Agent's Authority
4.Secret Limiting Instruction

Front 24

ratification

Back 24

When Agent purports to act on behalf of the P without authority and P later ratifies Agent's acts.

Front 25

Ratification Effects

Back 25

Retroactive effect
Agent relieved of liability

Front 26

When ratification does not relate back

Back 26

called adoption
1. When P had no capacity at time of contract but has it at the time of ratification
2. When there are Intervening Rights

Front 27

Prerequisites for Ratification (3)

Back 27

1. actual of constructive knowledge of material facts
2. Must accept entire transaction (unless transactions are severable)
3. Must have capacity

Front 28

Methods of Ratification

Back 28

Express or Implied

Front 29

Implied ratification

Back 29

Acceptance of Benefits or
Silence

Front 30

What may not be ratified

Back 30

1. When Performace is illegal
2. Withdrawal by the Third Party
3. Material change in circumstances

Front 31

Who may ratify

Back 31

Only a disclosed or partially disclosed principal

Front 32

Disclosed Principal

Back 32

Only Principal has contract rights
Agent is not liable unless he has no authority and he breaches the warranty of authority (actual not K damages)

Front 33

Partially disclosed Principal

Back 33

Principal, agent and Third party all have contract rights and liability.

Front 34

Undisclosed Principal

Back 34

A can enforce and be held liable on contract.
P can be held liable on contract.
P can generally enforce contract against TP.

Front 35

When can undisclosed principal not enforce Contract?

Back 35

1.When there's fraudulent concealment of Principal's identity
2. When contract was based on trust and confidence
3. TP would have refused to deal with P
4. Contract language expressly denies an undisclosed principal
5. when performance by P (now revealed)would pose an undue burden on Agent

Front 36

Maryland's Doctrine of Election

Back 36

A Third Party can take judgment against P or A- but can get satisfaction from only one.

Front 37

Imputed Knowledge Notice

Back 37

If agent learns of informatioin within the scope, Principal has notice of it
Exception: If A is acting fraudulently against P

Front 38

Agent wanting to Compete

Back 38

1.Agent cannot compete with Principal while working for P.
2. Agent can prepare to compete while working for P
3. A can compete after quitting but no use of confidential information learned from P

Front 39

Restrictive Covenants

Back 39

Valid if reasonable as to:
Time
Geography
Subject
Not against Public Interest

Front 40

At Will Employers

Back 40

Can be fired at any time without reason and without liability

Front 41

When employer liable for firing at will employee

Back 41

Abusive Discharge- A can collect damages if discharge violates a "clear mandate of public policy"

Front 42

Abusive Discharge in MD

Back 42

Fired for:
refusing to take lie detector test
Refusing to have sex with boss or clients(can collect damages from employer)

Front 43

Not Abusive discharge in MD

Back 43

Fired for non-business purpose.
Fired for wanting to consult a lawyer b4 signing evaluation
Statute provides a remedy for discharge- whistleblowing

Front 44

Termination of agency Relationship

Back 44

Death
Bankruptcy
Insanity(even if no notice to A)

Front 45

Duties of Agent

Back 45

Duty of Loyalty
Duty of Obedience
Duty of Reasonable Care
Duty to NOtify

Front 46

Duty of Reasonable Care Standard

Back 46

Compensated agent- light of community standards + skills of A
Gratuitous Agent- community standards for unpaid A (most times same as for paid agent)

Front 47

Is it a partnership?

Back 47

Two or more people?
Intent to be partners? (can be implied)
* Presumption of pship if share PROFITS from business

Front 48

Five exceptions to profit sharing presumption.

Back 48

debtor / creditor (debt repaid from profits)
employer / employee (wage paid from profits)
landlord / tenant (rent paid from profits)
Receiver of goodwill from profits after sale
Receiver of retirement or health benefit from profits

Front 49

When can someone who is not a partner be held liable as if he were?

Back 49

Purported Partner doctrine
If one represented himself as a partner, or consented to being held out as a partner, then he will be treated as a partner if T relied on this in dealing with partnership.

Front 50

What are the default voting requirements?

Back 50

General issues: majority

Big issues like selling goodwill, entering large contracts, and admitting new partners requires unanimity.

Front 51

What happens when a partner dies, quits, goes bankrupt or is expelled?

Back 51

dissociation

dissociated P can be held liable for 2 years (and vice versa) unless he files a Statement of Dissociation with SDAT

Dissociated P must be bought out by other Ps

Front 52

What duties to partners owe each other?

Back 52

due care = gross negligence standard
good faith and fair dealing
loyalty

Front 53

Is it partnership property?

Back 53

Acquired with pship funds? (then presumed pship's)
Who is it titled to? (if titled to a P then presumed his)
Used in pship's ordinary business?
Who pays tax on it?
Who pays for improvements?

Front 54

When can a limited partner be personally liable for pship debts?

Back 54

1. the LP has his name in the Pship's name, and creditor though LP was a GP
2. LP takes part in control of the pship, and creditor believes he is a GP based on his conduct

Front 55

Rights and duties of a LP

Back 55

Rights: Profits shared based on % owned, can inspect books if owns 5%, can bring derivative actions, can petition court for dissolution.

Duties: must pay contribution, duty of loyalty