Flashcards in Agency/Partnerships Deck (29)
Elements of vicarious liability
1. Existence of agency relationship
2. Tort within scope of relationship
Elements of agency relationship
3. Control (power to supervise manner of performance)
Exceptions to 'independent contractor' exception
Inherently dangerous activity
(held out with the appearance of agency --> estopped from denying liability)
Intentional torts - exception to rule that P not liable
Authorized by P
Natural from nature of employment/agency
Motivated by desire to serve P
Scope - tests
1. Conduct 'of the kind' hired to perform
2. Tort occurred 'on the job'
(frolic / detour)
3. Intended by agent to benefit P
P liability for A's contracts - 4 situations
Actual express authority
Actual implied authority
Actual express authority - oral?
Yes unless contract itself must be in writing. (Statute of Frauds)
Actual express authority - revocable
Yes, by P or A.
Terminates upon death unless POA provides survival.
*NY* POA survives as default.
Actual implied authority - 3 types
Necessity (to accomplish actual express authorized task)
Custom (by persons with A's title/position
Prior dealings (A believes are authprized from prior acquiescence)
Apparent authority - 2 elements
P cloaks A with appearance of authority
3rd party relies on appearance
Ratification - 2 elements and *NY*
P has knowledge of all material facts
P accepts benefit
*NY* No ratification if P changes any of the terms
No agent liability for contract - 1 exception
"Undisclosed Principal" -->
A or P liable, at 3rd party election
Agent's duties - 3
Duty of Care
Duty to Obey (instructions that are reasonable)
Agent's Duty of Care - 3 types
1.Self-dealing - Agent benefits self to P's detriment
2. Usurping P's opportunities
3. Secret undisclosed profit on resale
Remedies for breach of Agent Duty of Loyalty
1. Recover losses
2. Disgorge profits
Prima facie evidence of partnership?
Contribution of money or services in return for a share of the profits
Incoming partner liability for past debts
No personal liability for prior debts.
Contributions can be used to satisfy prior debts.
Dissociating partner liability for future debts
Until actual notice of dissociation given to known creditors and publication to all potential creditors.
Partnership asset liquidation - transferability of assets by individual partner
Land, leases, equipment: Only w partnership authority
Share of profits: Transferable
Share in management: Not transferable
Distinction between partnership property and personal property
Whose $$ was used to buy it.
Partnership management/voting "without an agreement"
1 partner 1 vote.
EXC: unanimous consent for fundamental decisions
Salary in partnership?
Only with agreement.
EXC: Helping to wind up business
Partner shares in profit/loss
Profits: Equal or per agreement
Losses: Same as profits or per agreement
(Regardless of how much each partner contributed)
Dissolution of partnership
*NY* automatic dissolution upon material change caused by death, withdrawal of partner
Stages of dissolution
Winding up (process of liquidating assets to satisfy creditors)
Creditor priority in p'ship winding-up
1. 3rd party trade creditors
2. Partner loans
3. Partner capital contributions
4. Distribute profits to partners (equally without agreement)
Partners liable for partner loans and contributions!
Formation of limited partnership
File limited p'ship certificate with names of all GPs.
(No filing required for regular partnership)
Registered Limited Liability Partnership
Formed by filing certificate with state profession
No partner liable for debts/obligations.