Ny Agency And Partnership

Front 1

What are the elements of agency? (ABC)

Back 1

1. Assent

2. Benefit (to agent)

3. Control

Front 2

Under what two circumstances will an agent be liable for the conduct of an independent contractor?

Back 2

1. Ultra-hazardous activities

2. If principal holds out independent contractor as an agent

Front 3

Distinguish frolic and detour

Back 3

Frolic - independent journey (outside scope)

Detour - Mere departure (in scope)

Front 4

Are intentional torts within the scope of agency?

Back 4

No, not generally

Front 5

What are the exceptions to the general rule that intentional torts are outside the scope of agency?

Back 5

1. Specifically authorized by principal

2. Natural from nature of employment

3. Motivated by desire to serve principal

Front 6

Generally, when is a principal liable for contracts entered into by its agent?

Back 6

If the principal authorized the agent to enter into the contract

Front 7

What are the 4 ways a principal can authorize an agent to enter into a contract on the principal's behalf.

Back 7

1. Actual Express Authority

2. Actual Implied Authority

3. Apparent Authority

4. Ratification

Front 8

When has a principal given actual implied authority?

Back 8

Agent reasonably think principal has given him

1. Necessity (to do all things necessary)

2. Custom (all things customarily done by person with that title)

3. Prior dealings (btwn principal and agent)

Front 9

What is the two-part test for when an agent has Apparent authority?

Back 9

1. Principal cloaked agent with appearance of authority

2. 3rd party reasonably relied on appearance of authority

Front 10

What is secret limiting authority?

Back 10

1. Principal has actual authority

2. Agent has secretly limited that authority

3. Agent acts outside of the scope of that limitation

4. 3rd party reasonably relies on agent representation

Front 11

What is lingering authority?

Back 11

1. Agent actual authority has been terminated

2. Afterward, agent continues to operate on the principal's behalf

Front 12

When has a principal ratified a contract that an agent has entered into on his behalf?

Back 12

1. Principal has has knowledge of all the material facts regarding the contract

2. Principal Accepts its benefits

Front 13

If the identity of the agent is ________ or ____________ then an authorized agent may still be liable for contracts it entered into on behalf of the principal.

Back 13

1. undisclosed (existence concealed)

2. partially disclosed (identity concealed)

Front 14

What three duties does the agent owe to the principal?

Back 14

1. Duty to exercise reasonable care

2. Duty to obey reasonable instructions

3. Duty of loyalty

Front 15

What is included in an agent's duty of loyalty?

Back 15

1. Self dealing (no benefit to detriment of principal)

2. Usurping principal's opportunity

3. Secret Profits

Front 16

Define partnership

Back 16

Association of two or more persons, carrying on a business for profit.

Front 17

Partners are _____ of the partnership.

Back 17

Agents.

Front 18

Partners are liable for the _________ and bound by the ________ of other partners in the scope of partnership.

Back 18

1. Torts and

2. Contracts

Front 19

Are general partners personally liable for the debts of the partnership?

Back 19

Yes.

Front 20

An incoming partner is not liable for _________ debts of the partnership but ___________.

Back 20

1. debt

2. But its money paid in can be used to satisfy those debts

Front 21

What is the rule for outgoing partners with respect to debts?

Back 21

They are liable on those debts unless they give notice of withdrawal to all creditors.

Front 22

What is general partnership by estoppel?

Back 22

One who represents to a 3rd party that a partnership exists will be liable as if it does exist.

Front 23

Define limited partnership.

Back 23

Partnership with at least one general partner and one limited partner.

Front 24

How are limited partnerships created?

Back 24

Must file partnership certificate which lists names of all general partners

Front 25

What are is the status of control and liability for a general partner in a limited partnership.

Back 25

1. Liable for all partnership obligations but

2. Also has right to control

Front 26

What are is the status of control and liability for a limited partner in a limited partnership.

Back 26

1. Not liable for all of partnership obligations but

2. Also has limited right of control

Front 27

What is the liability rule for Registered limited liability partnerships?

Back 27

1. No partnership liability for debts

2. But partners can be sued individually (e.g. for malpractice)

Front 28

How is a registered limited liability partnership formed?

Back 28

By filing a certificate of registration with NY department of state

Front 29

How are limited liability companies formed?

Back 29

1. File articles or organization

2. Publish summary once a week for 6 weeks in 2 NY newspapers

Front 30

What is the status of liability within a limited liability company?

Back 30

No members are liable for debts or obligations of the company

Front 31

In a limited liability company, partner's interests are not __________.

Back 31

transferable

Front 32

What are the elements of a partner's duty of loyalty?

Back 32

1 Self Dealing (benefit at expense of partnership)

2. Usurp partnership opportunities

3. No secret profits at partnership expense

Front 33

What are the other partner's remedy when one partner breaches the duty of loyalty?

Back 33

Action for accounting - recover losses and disgorge the breaching partner

Front 34

Specific partnership assets _______.

Back 34

Cannot be transferred by any one partner without authority of partnership.

Front 35

Shares of profit and surplus _________

Back 35

Are private property and can be transferred to 3rd parties without partnership approval

Front 36

Share in management is ________.

Back 36

Owned by the partnership itself and cannot be transferred by an individual partner.

Front 37

Absent agreement what is the value of each partners vote?

Back 37

An equal vote.

Front 38

Absent agreement how much salary does each partner get?

Back 38

None (except during wind-up)

Front 39

Absent agreement, how are profits and losses apportioned among partners?

Back 39

Equally

Front 40

During wind-up, what is partner's liability for old business?

Back 40

Partners are liable for all contracts entered into with existing creditors

Front 41

During wind-up, what is a partner's liability on new business (future creditors)

Back 41

individual Partners are liable until notice of dissolution is given to all existing and potential creditors.

Front 42

What is the priority of distribution during wind-up?

Back 42

1. Creditors must be paid (partner and non-partner)

2. Capital contributions by creditors

3. Profits and surplus if any equally distributed among partners