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Agency Flashcards

(59 cards)

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1
Q

What is needed to create principal-agency relationship

A

consent and control

*principal & agent that agent will act for principal’s benefit and is subject to principal’s control

Writing/consideration not needed

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2
Q

Factors to look at control

A

level of skill required
who supplies the instrumentalities used
duration of relationship
work is part of principal’s regular business

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3
Q

Sub agents

A

agent gets agent of their own, principal liable for conduct of sub agent if consents and controls sub agent directly

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4
Q

Borrowed Agent

A

principal borrows an agent from another principal only liable for conduct if consent and contol

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5
Q

Why does it matter if someone is an agent

A

principal liable to 3rd party in tort and contact for conduct of agent

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6
Q

Independent Contractors

A

principal not liable for torts b/c no control unless

  1. non delegable duty- inherently dangerous activity
  2. Estoppel- reliance by 3rd party principal liable if believe they are an agent
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7
Q

Termination of agency

A

principal manifests to agent dissent to discontinue the relationship

anytime

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8
Q

Express Actual Authority

A

agent is expressly given authority to act for principal

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9
Q

Express Actual Authority Termination

A

act of principal or agent

death or incapacity of principal unless DPOA b/c survives death

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10
Q

Implied Express Authority

A

principal’s conduct led agent to believe it has authority

*custom, past course of conduct, necessity or an emergency circumstance

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11
Q

Implied Actual Authority Termination

A

after reasonable time

change in circumstance (item destroyed)

agent acquires an adverse interest

either party decides it ends

death, incapacity, bankruptcy unless power is irrevocable

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12
Q

Apparent Authority

A

person dealing with agent must do so reasonable belief in agent’s authority and belief must be b/c act or neglect on principal

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13
Q

Apparent Authority Termination

A

notifying 3rd party (sometimes newspaper is enough)

CL if principal dies 3rd party needs notice of death

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14
Q

Inherent Agency Power

A

eliminated

agent violates orders but does so in principal’s interests and is trusted and controlled by principal

done in course of business

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15
Q

Ratification

A

agent doesn’t have authority to enter transaction and principal can ratify acts of agent and become liable by expressly or impliedly affirming the benefit of it so long as he knew the material facts and had the capacity to ratify it

“all or nothing” Can’t accept just 1 part

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16
Q

2 views of ratification for undisclosed

A

2nd Restatement of Agency- undisclosed principal may not ratify its agents acts (3rd party doesn’t know)

3rd Restatement Agency- undisclosed principal may ratify its agents acts

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17
Q

Disclosed Principal Ratification

A

3rd party knows principal agent isn’t liable to 3rd party if agent had authority to enter K but if no authority liable to 3rd party & principal

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18
Q

Undisclosed Principal liability

A

agent liable no matter what

principal liable if agent had authority to enter K

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19
Q

unindeitfied prinicpal

A

3rd party knows principal exists but just doesn’t know who principal is

agent & principal liable

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20
Q

indemfication

A

agent acts beyond his authority principal can sue agent

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21
Q

Vicarious liability

A

employer liable in tort if agent or employee (SMI)

acting scope of employment

made a minor deviation

committed an intentional tort if & only if principal’s benefit, b/c authorized by principal, arose naturally due to nature of employment

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22
Q

Scope of Employment Factors

A

time, place, purpose of act

if act is common of servants

criminal

employer has reason to expect act to be done

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23
Q

detour vv frolic

A

detoru- minor deviation

frolic- major deviation

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24
Q

if 3rd party releases agent

Study These Flashcards
A

principal also released

25
direct liability of principal
neglgience in hiring, firing or supervising
26
duties owed by agent
duty of care duty of loyalty- not engage in self dealing, taking opportunity from principal, making profit without disclosure duty to obey instructions
27
Partnership Definition
association of two or more persons to carry on as co-owners of business for profit whether or not intended to form partnership
28
Formation of partnership
no formalities like writing or contributions
29
coownership in partnerhship
more then joint ownership evidenced by control sharing of profits and losses
30
profit sharing presumption
person is partner in businesjs unless profts received in payment of 1. debt 2. wages of an employee 3. rent 4. annuity to widow 5. interest on loan 1. consideration for sale of goodwill of business
31
Indications of partnership
profit sharing contributing capital how title to property mutual agency/joint liability partnerhsip agreement filing certificate of buisness common interest in capital
32
Rights + Duties of Parternship
= rights to co-manage ordinary affairs even if profits aren't = losses + profits = unless specified otherwise no right to salary for running partnership every partner has ability to bind partnership (agency relationship) right to be reimbursed if on course of activities of partnerhsip
33
Voting
affirmative voting of all partners needed for outside matters like admitting new member, selling land, amendment majority vote needed for ordinary matters
34
Partnership by Estoppel
liable to 3rd parties who rely on partnership even if never formed
35
General Partnership Liability
jointly &severally liable for all debts incurred by partnership & liability arising from wrong acts negligence
36
Incoming Partner
not liable for prior debts but anything they pay can be used to satify past debt
37
outgoing partner
personally liable unless released by creditors retain liability until notice of disaccositon given to creditors
38
Procedure for collecting agianst partnership
obtain jusgement against partnerhsip or/and partner first collect partnerhsip assets then partner individually
39
UPA Uniform Partnership Act
judgement against partnership doesn't allow creditor to collect from partner must have judgement against both
40
Fiduviary Duties of partners
Act honestly & in good faith Duty of Loyalty Duty to account Duty of care
41
Duty of Loyalty
not take away opportunties from partnership for personal advantage compete w/ partnerhsip selfdealing
42
Duty to Account
must account for any profit and hold any profit as a trustee for partnership
43
Duty of Care
partners must act w/ ordianry care
44
Ways to Dissolve partnerhsip
death-automatic end of definite term or completion of undertaking partner's express will (withdrawl) expulsion bankruptcy illegality cour decree
45
Notice of dissolution
prior creditors-personal notice others who knew of partnership- newspaper notice
46
Wrongful Withdrawl
partners can choose not to wind up & buy share of partner Can't participate in winding up “6 month notice but only gave 2”
47
Rightful Withdrawl
Partnership at will partner can participate in winding up but no control not liable for damages to other partners “i quit”
48
Steps to dissovle
1. disassocaition- dissolve 2. winding up 1. termination
49
Winding up
occurs after dissolution assets liquidated creditors paid all partners liable for any liabilties
50
Distribution of partnerhsip assets after dissolution
TLCP 3rd party creditors get what they are owed partners paid back for their loans partners paid bacl for contributions partners paid any profits
51
Termination
True end of partnership
52
Use of partnership property
only use for partnerhship use not individual can't transfer as indiviudal must do in name of partnership
53
Partnership property determination
proeprty acquired w. partnership funds use and upkeep agreement title
54
indiivudal property
share of profits management rights
55
Property creditor has access to
creditor of partner can acqurie their interest in partnership (profits paid only) no voting rights by obtainign judgment or partner assigns them their interest
56
creditor seeking dissolution
only at will partnerhsip or if particular term or undertaking but must be complete
57
LLP
formation- must register w/ state by filing statement of qualification liability- no partner personally liable for obligations of partnership but are for indiivudal torts anything that happend before LLP treated GP meaning jointly and severally liable
58
LP
Formation- file certificate w/ state & pay fee, include names of all general partners if none named not created liability- limited partners- limited liability; general partners- liable for all obligations they control and mange
59
LP Rights
Right to take part in control- spilt if limited partners can mange some say if they do forfeit status Right ot obtain records- limited aprtners can obtain records from genral partner supon reasonable demand if info is related to bsuinss and financial condition Right to pursue a derivative claim- lmited partners can pursue deritive claim but must have standing to show claim successful Limited aprtners have same duties as genral partners (Care loyaloty, good faith, honesty)

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