Busy. Please wait.
or

show password
Forgot Password?

Don't have an account?  Sign up 
or

Username is available taken
show password

why


Make sure to remember your password. If you forget it there is no way for StudyStack to send you a reset link. You would need to create a new account.
We do not share your email address with others. It is only used to allow you to reset your password. For details read our Privacy Policy and Terms of Service.


Already a StudyStack user? Log In

Reset Password
Enter the associated with your account, and we'll email you a link to reset your password.

Remove Ads
Don't know
Know
remaining cards
Save
0:01
To flip the current card, click it or press the Spacebar key.  To move the current card to one of the three colored boxes, click on the box.  You may also press the UP ARROW key to move the card to the "Know" box, the DOWN ARROW key to move the card to the "Don't know" box, or the RIGHT ARROW key to move the card to the Remaining box.  You may also click on the card displayed in any of the three boxes to bring that card back to the center.

Pass complete!

"Know" box contains:
Time elapsed:
Retries:
restart all cards




share
Embed Code - If you would like this activity on your web page, copy the script below and paste it into your web page.

  Normal Size     Small Size show me how

Agency/Partnership

Barbri Review

QuestionAnswer
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Issue Whether principal will be vicariously liable for torts committed by its agent
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Two-part test, Principal will be liable for torts committed by its agent if- 1. A principal-agent relationship exists, and 2. Tort was committed by agent within scope of that relationship
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requires 1. Assent, 2. Benefit, 3. Control
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requires, Assent Informal agreement b/w principal and agent
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requirement, Benefit Agent's conduct is for principal's benefit
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requirement, Control Principal has right to control, by having power to supervise the manner the agents of performance
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requirement, Control- Subagent Principal will be liable for subagent's tort only if there is assent, benefit, and right to control; Not vicariously liable if do not asset and do not have right to control
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship requirement, Control- Borrowed agents Principal will be liable for borrowed agent's tort only if there is assent, benefit, and right to control; May assent and benefit, but no right to control then not vicariously liable
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship, Agents v. Independent contractors No right to control an independent contractor and no power to supervise its performance
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship, Agents v. Independent contractors- Independent contractors Vicarious liability for independent contractor torts not generally applicable
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Principal-agent relationship, Agents v. Independent contractors- Independent contractors, Exceptions 1. Ultra-hazardous activities, and 2. Estoppel (if you "hold out" independent contractor w/appearance of agency, will be estoppel from denying liability)
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Scope of principal-agent relationship factors, Conduct of the kind Was conduct "of the kind" agent was hired to perform? Scope of duties, job description
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Scope of principal-agent relationship factors, "On the job" Frolic v. detour; Frolic= New and independent journey, Detour= Mere departure from a task
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Scope of principal-agent relationship factors, Benefit principal Did agent intend to benefit the principal? Partial benefit is enough to be within scope
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Intentional torts, G/R Intentional torts like battery or assault are outside the scope
Agency- Liability of Principal for Torts of Agent Respondeat superior or Vicarious liability: Intentional torts, Exceptions Intentional tort w/in scope if conduct was- 1. Specifically authorized, or 2. Natural from nature of job, or 3. Motivated to serve the principal
Agency- Liability of Principal for Contracts Entered By Agents; Issue Whether principal is liable for Ks entered into by its agents?
Agency- Liability of Principal for Contracts Entered By Agents; Test Principal liable for Ks entered into by agent only if the principal authorized agent to enter K
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority Principal used words to express authority to agent
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, G/R Actual express authority can be oral and private
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, Exception- Equal dignities If K must be in writing (SoF or land), so too must the express authority be written
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, Revoked 1. Unilateral act of either principal or agent, or 2. Death or incapacity of principal
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, Revoked- Exception Principal gives a durable ("Survives") power of attorney (written expression of authority to enter a transaction)
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual express authority, Narrowly construed Narrowly tailored to actual words used
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual implied authority Authority which principal gives agent through conduct or circumstances
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual implied authority, Necessity Implied authority to do all tasks; Necessary to accomplish an express task (i.e. close the deal, allows renting a conference room to do so)
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual implied authority, Custom Implied authority to do all tasks; Customarily performed by persons with the agent's title or position (i.e. lawyer)
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Actual implied authority, Prior acquiescence by principal Implied authority to do all tasks; Which agent reasonably believes to have been authorized from prior practice with, and acquiescence by, principal (i.e. history of acquiescence)
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Apparent authority 1. Principal "cloaked" agent with appearance of authority, and 2. Third party reasonably relies on appearance of authority
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Ratification Authority can be granted after contract has been entered if- 1. Principal has knowledge of all material facts regarding K, and 2. Principal accepts its benefit
Agency- Liability of Principal for Contracts Entered By Agents; Types of authority: Ratification, Exception Cannot alter the terms of the K
Agency- Liability of Principal for Contracts Entered By Agents; Rules of liability on K: G/R Principal is liable on its authorized K, and authorized agent is NOT liable
Agency- Liability of Principal for Contracts Entered By Agents; Rules of liability on K: Exception, Undisclosed principal If principal is partially disclosed (only the identity of principal concealed) or undisclosed (fact of principal concealed), authorized agent may nonetheless be liable at the election of the third party
Duties Agent Owes To Principal- Reasonable compensation and reimbursement; Agents owes principals 1. Duty of reasonable care, 2. Duty to obey reasonable instructions (not lie/break law), 3. Duty of loyalty
Agency- Duties Agent Owes To Principal; Reasonable compensation and reimbursement: Agents owes principals, Duty of loyalty Agent may never do any of the following- 1. Self-dealing (Agent cannot receive benefit to detriment of principal), 2. Usurping principal's opportunity, 3. Secret profits (Making a profit at principal's expense without disclosure)
Partnership- General partnership formation; Formalities No formalities to being a general partnership
Partnership- General partnership formation; Definition Association of 2 or more persons who are carrying on as co-owners of a business for profit
Partnership- General partnership formation; Key factor Sharing of profits; Partners contribute money or services for a share of profits, if any, the contribution of money or services in return for share of the profits, if any, creates a presumption that general partnership exists
Partnership- Liabilities of general partners to third parties; Agency principles apply Partners are agents of partnership for apparently carrying on usual partnership business; General partnership is liable for each partner's torts in scope of partnership business and for each partner's authorized Ks
Partnership- Liabilities of general partners to third parties; Debts Each general partner is personally liable for all debts of partnership and for each co-partner's torts
Partnership- Liabilities of general partners to third parties; Debts: Incoming partner's liability for pre-existing debts No direct personal liability, but capital contributed can be used for that purpose
Partnership- Liabilities of general partners to third parties; Debts: Dissociating (withdrawing) partner's liability for subsequent debts Partner retains liability until actual notice of dissociation is give to creditor, or until 90 days after filing "notice of dissociation" with state
Partnership- Liabilities of general partners to third parties; General partnership liability by estoppel One who represent to a third party that a general partnership exists will be liable as if a general partnership exists
Partnership- Rights and liabilities b/w general partners; General partners are fiduciaries of each other and partnership General partners owe to each other and partnership a duty of loyalty- Meaning general partners may never engage in self-dealing, USUPR partnership opportunities, and make secret profit at partnership's expense
Partnership- Rights and liabilities b/w general partners; General partners are fiduciaries of each other and partnership: Action for accounting Partnership may now bring action to recoup losses, or to account for profits made by breaching partner (disgorge)
Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Specific partnership assets Land, leases, equipment, trucks, cars owned only by partnership, and cannot be transferred by any individual partner
Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Share of profits Personal property owed by individual partner, and can be transferred (i.e. inherited)
Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Share in management Not personal property, and cannot be transferred, partnership interest is relatively illiquid, only profits are personal property
Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Fact pattern In order to determine whether fact pattern involves property owned by partnership or personal property owned by an individual partner
Partnership- Rights and liabilities b/w general partners; Partner's rights in partnership property and liquidity: Fact pattern, Test Whose money was used to buy property, if partnership money was used, the property is partnership, if personal funds were used, it becomes personal property
Partnership- Rights and liabilities b/w general partners; Management Absent an agreement, each partner is entitled to equal control (vote); Majority vote= enough for ordinary affairs, Unanimous vote= required for fundamental partnership matters
Partnership- Rights and liabilities b/w general partners; Salary Absent an agreement, partners get no salary
Partnership- Rights and liabilities b/w general partners; Salary: Exception Compensation for helping to "wind up"
Partnership- Rights and liabilities b/w general partners; Partner's share of profits and losses Absent an agreement- 1. Profits shared equally, 2. Losses shared like profits
Partnership- General partnership dissolution; Key definitions: Dissolution In absence of an agreement that specifies events of dissolution, a general partnership dissolves upon notice of the express will of any one general partner to dissociate
Partnership- General partnership dissolution; Key definitions: The real end of partnership Termination
Partnership- General partnership dissolution; Key definitions: Winding up Remaining partners liquidate assets to satisfy creditors
Partnership- General partnership dissolution; Partnership's liability: Old business The partnership and therefore its individual general partners retain liability on- All transactions entered to wind up old business with existing creditors
Partnership- General partnership dissolution; Partnership's liability: New business The partnership and therefore its individual general partners retain liability on brand new transaction during winding up until- Notice of dissolution is given, but liability terminates 90 days after filing "statement of dissolution"
Partnership- General partnership dissolution; Priority of distribution Each level satisfied before beginning next
Partnership- General partnership dissolution; Priority of distribution: Order of priority 1. Pay all creditors, 2. Repay all capital contributions paid into partnership by partners, 3. Profits or losses
Partnership- General partnership dissolution; Priority of distribution: Order of priority, Creditors 1. Trade creditors, suppliers, and 2. Partners who loaned money
Partnership- General partnership dissolution; Priority of distribution: Order of priority, Capital contributions Money paid in by partners (not loans) not for any fixed rate of interest
Partnership- General partnership dissolution; Priority of distribution: Order of priority, Profits/losses Any money remaining, shared equally in the absence of an agreement
Partnership- General partnership dissolution; Priority of distribution: Rule Each partner must be repaid his/her loans and capital contributions, plus that partner's share of any profits, or minus that partner's share of any losses
Partnership- Alternative unincorporated business organizations; Limited partnerships A partnership with at least 1 general partner and at least 1 limited partner, dual liability/limited liability forms
Partnership- Alternative unincorporated business organizations; Limited partnerships: Formation Limited liability forms must file "limited partnership certificate" that includes names of all general partners
Partnership- Alternative unincorporated business organizations; Limited partnerships: Liability and control, General partners General (substantial managerial) control, and general liability
Partnership- Alternative unincorporated business organizations; Limited partnerships: Liability and control, Limited partners (majority) Have limited liability, not liable for obligations of other partners or partnership. The law in most states, and for this bar exam, is still that a limited partner may not manage the business without forfeiting limited liability
Partnership- Alternative unincorporated business organizations; Limited partnerships: Liability and control, Limited partners- Revised uniform limited partnership act (minority) Limited partners may manage without forfeiting limited liability
Partnership- Alternative unincorporated business organizations; Registered limited liability partnership (RLLP): Formation Must file "statement of qualification" and annual reports
Partnership- Alternative unincorporated business organizations; Registered limited liability partnership (RLLP): Liabilities No partner is liable for partnership obligations, but they are liable for own wrongdoing, or wrongdoing of those under their direct supervision
Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Defined A hybrid b/w corporation and partnership in which owners who are called members have limited liability and also benefits of partnership tax treatment
Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Formation requirements Organizers must file articles of organization and adopt an operating agreement
Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Control Owners (members) control, but may delegate to a team of managers
Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Limited liquidity A full membership interest may not be transferred without unanimous consent of all members, or as provided in the operating agreement
Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): Limited life The articles of organization or operating agreement must indicate events of dissolution
Partnership- Alternative unincorporated business organizations; Limited liability companies (LLC): LLC= Limited liability + limited liquidity + limited life + Limited tax
Created by: dmoore147