Agency/Partnerships Flashcards Preview

NY Bar 2014 > Agency/Partnerships > Flashcards

Flashcards in Agency/Partnerships Deck (29):
1

Elements of vicarious liability

1. Existence of agency relationship

2. Tort within scope of relationship

2

Elements of agency relationship

1. Assent

2. Benefit

3. Control (power to supervise manner of performance)

3

Exceptions to 'independent contractor' exception

Inherently dangerous activity
or
Estoppel
(held out with the appearance of agency --> estopped from denying liability)

3

Intentional torts - exception to rule that P not liable

Authorized by P
or
Natural from nature of employment/agency
or
Motivated by desire to serve P

4

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

5

P liability for A's contracts - 4 situations

Actual express authority
or
Actual implied authority
or
Apparent Authority
or
Ratification

6

Actual express authority - oral?

Yes unless contract itself must be in writing. (Statute of Frauds)

8

Actual express authority - revocable

Yes, by P or A.
Terminates upon death unless POA provides survival.
*NY* POA survives as default.

9

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)

10

Apparent authority - 2 elements

P cloaks A with appearance of authority
and
3rd party relies on appearance

11

Ratification - 2 elements and *NY*

P has knowledge of all material facts
and
P accepts benefit

*NY* No ratification if P changes any of the terms

12

No agent liability for contract - 1 exception

"Undisclosed Principal" -->
A or P liable, at 3rd party election

13

Agent's duties - 3

Duty of Care
Duty to Obey (instructions that are reasonable)

14

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

15

Remedies for breach of Agent Duty of Loyalty

1. Recover losses
2. Disgorge profits

16

Prima facie evidence of partnership?

Contribution of money or services in return for a share of the profits

17

Incoming partner liability for past debts

No personal liability for prior debts.
Contributions can be used to satisfy prior debts.

18

Dissociating partner liability for future debts

Until actual notice of dissociation given to known creditors and publication to all potential creditors.

19

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

20

Distinction between partnership property and personal property

Whose $$ was used to buy it.

21

Partnership management/voting "without an agreement"

1 partner 1 vote.
EXC: unanimous consent for fundamental decisions

22

Salary in partnership?

Only with agreement.
EXC: Helping to wind up business

23

Partner shares in profit/loss

Profits: Equal or per agreement
Losses: Same as profits or per agreement
(Regardless of how much each partner contributed)

24

Dissolution of partnership

*NY* automatic dissolution upon material change caused by death, withdrawal of partner

25

Stages of dissolution

Dissolution
Winding up (process of liquidating assets to satisfy creditors)
Termination

26

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!

27

Formation of limited partnership

File limited p'ship certificate with names of all GPs.
(No filing required for regular partnership)

28

RLLP?

Registered Limited Liability Partnership
Formed by filing certificate with state profession
No partner liable for debts/obligations.

29

LLC formation

File AoA
Publish AoA summary in 2 newspapers
May adopt operating agreement

Majority consent for transfer of membership interest