Agency & Partnership Flashcards
(54 cards)
Warrant of authority
If A makes K w/o authority, K is binding but A is liable for damages resulting from breach
Apparent Authority
Turns on 3rd party’s reasonable and good faith beliefs *focus is on what P has said/done not what A says/does
Undisclosed P (effect)
3rd party can back out if: - A falsely rep’d that A was acting for himself - P or A knew 3rd party would not have entered into K
Partnership dissolution
W at will partnership Expiration of term M mutual consent E expulsion of a partner B bankruptcy A activities illegal D death
Accounting as of right
- Partner wrongfully excluded from partnership business 2. wrongfully excluded from possession/use of partnership property 3. Partnership agreement says so 4. another partner wrongfully obtains secret profits 5. just and reasonable under the circumstances
Transferring partnership rights
- can transfer econ rights - NOT managerial or voting rights
Apparent authority factors
- past dealings btw P and A of which 3rd party is aware 2. Trade customs 3. Industry standards 4. P’s written statement of authority 5. Nature of transaction
Partnership Actual Authority
Ordinary business: actual authority exists Special business: actual authority does not exist! - assignment of property - disposition of the goodwill of partnership - action that would make partnership impossible - confess a judgment - claim or arbitration
Dissolution and partner liablity
Generally, dissolution does not absolve partners of liability, unless: 1. Dissolution due to - illegality - bankruptcy 2. Partner in question lacked even authority to wind up affairs
A capacity
minimal capacity = ability to consent to act on P’s behalf
Partnership (losses and profits)
- each partner entitled to equal share of profits and losses
Terminating Agency
- unilateral right - by P or A at any time - must provide notice
A’s duties to P
- duty of loyalty - cant use agent rel for personal gain - cannot usurp a biz opp - cannot compete w/ P during agency rel 2. duty of care - commensurate w/ skills - duty of notice
Partnership by Estoppel
- some representative action that person is a partner - by the person or w/ her consent - reasonable reliance on the representation - damage as a result of reliance
Partner indemnificatoin
Partnership must indemnify partner if sued due to conduct in pursuit of partnership business
Continuing partnership after dissolution
- If dissolution due to death or bankruptcy, remaining partners can agree to continue - disassociating partner is paid a fair share of her partnership stake
P capacity
Must have legal capacity to possess rights and incur responsibility - unincorporated orgs lack capacity
Partnership property
- cannot unilaterally assign away partnership property - cannot use partnership property for personal benefit
LLP
Only available to licensed professionals - ease of partnership w/ protection of limited liability w/ the exception of tortious acts
Durable power of attorney
- created in writing - intent to create durable power of atty
Agent K liability
only if P is undisclosed or partially-undisclosed
P tort liability for A’s acts
- Control (day-to-day) 2. Scope of employment - closely connected - common - history - frolic - foreseeability
Partnership
Association of 2+ for purposes of carrying on a for-profit business as co-owners - specific intent not required - shared profit = prima facie proof
Partnership (J&S)
If partnership has insufficient assets to pay debt, each partner is J&S liable
