Code III - Misc. Flashcards Preview

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Flashcards in Code III - Misc. Deck (33):
1

What is mandate?

Common law agency. Mandate is now considered as one form of represenation. Representation occurs when on eperson represents another person in that person's legal relations--can arise by operation of law or by juridical act.

2

How is mandate defined?

Mandate is a contract between a principal and a mandatary conferring on the mandatary the authority to transact on behalf of the principal.

3

What are the types of mandate?

Mandate may be either gratuitous or onerous. A person can be the mandatary of two or more persons, but must disclose his representation to all parties.

4

What are the forms of contract of mandate?

1. Mandate has no form requirements, so an oral mandate may be enforceable. 2. Equal dignity rule applies--if the act to be performed by the mandatary is one that must be in a certain form, the act creating the mandate must also be in that form.

5

What is a mandatary's authority?

1. Principal may confer general authority on the mandatary to do whatever he thinks is appropriate. Mandatary can do any acts that are either incidental or necessary for performance of his mandate.

6

What acts require express authority?

1. AEL property; 2. Inter vivos donation; 3. Accepting/renoucing succession; 4. Contracting a loan or acknowledging/remitting a debt; 5. Becoming a surety; 6. Making or indorsing a promissory note or NI; 7. Entering into a compromise or agree to arbitration; 8. Making healthcare decisions.

7

What are the duties of a mandatary?

1. Duty to act with prudence and diligence. If he breaches, liable to principal for his losses (damages can be reduced by the judge if the mandate is gratuitous). 2. Mandatary may appoint a substitute, but will be liable for substitue unless the mandatary was expressly authorized to appoint substitute and exercised care in his choice.

8

What are other duties of a mandatary?

1. Bound to give information to the principal; 2. Bound to deliver all that mandatary has received to the principal.

9

What happens if mandatary exceeds the authority invested in him?

Liable to the principal for any loss the princioal has sustained. 1. If mandatary sustains loss because he exceeded is authority, he cannot recover from the principal unless the principal ratifies the unauthorized acts. A mandatary does not exceed his authority when he fulfills his duites in a manner more advantageous to the principal then what was authorized.

10

What are the duties of principal?

1. Bound by all obligations lawfully contracted on her behalf by the mandatary. Not bound by unauthorized acts unless she ratified them. 2. Duty to reimburse mandatary for his expenses and charges and any loss sustained by the mandatary without fault.

11

What are the obligations created by a third person with respect to a mandatary?

Depends on the third person's knowledge of the mandate.

12

What are the obligaitons if there is a disclosed mandate and disclosed principal?

1. Mandatary is not personally bound to the third person. Only the principal is bound.

13

What are the obligations if the mandatary is undisclosed?

1. If mandatary contracts in his own name wihtout disclosing his mandate, he is personally bound to the third party.

14

What are the obligations if there is a disclosed mandate but undisclosed principal?

1. Mandatary is personally bound to the third party until the identity of the principal is disclosed to that third party.

15

What are the exceptions to the rule that a mandatary who exceeds his authorityy is personally bound to the third party?

1. Where the third party knew the mandatary was exceeding his authority; or; 2. Where the principal ratifies the contract.

16

What are the obligations of the principal to the third party?

1. General rule: the principal is bound to the third party for all contracts made by the mandatary within the limits of his authority. 2. If putative principal causes a good faith third party to believe that another person is his mandatary, then the putative principal is bound to the third party.

17

What are the obligations of third party to the principal?

1. A third part who contracts with a mandatary is bound to the principal if the mandatary contracted in the principal's name or if the mandatary disclosed the mandate but not the identity of the principal. 2. Third party is bound to the principal even in the case of the undisclosed mandate unless the obligation is strictly personal or the right is unassignable.

18

How does the mandate terminate?

1. Death of either the principal or the mandatary; 2. Interdiction of the mandatary or qualification of the curator after interdiction of the principal; 3. Notice of termination by either party.

19

When does the mandatary's authority continue despite termination?

1. Third party not notified of the termination; 2. If mandate ends due to principal's death, mandatary must complete undertakings commenced prior to the principal's death if delay would injure the principal's interest; 3. If mandate has been recorded, any revocation/modification must also be recorded; 4. Mandatary is unaware of termination of the mandate, any contracts he has entered into in good faith with third parties are binding on the principal.

20

What is depoist?

A deposit is a contract in which the depositor delivers a movable thing to the depositary for sakekeeping. The depositary is bound to return the thing to the depositor upon demand. Deposit can be either onerous or gratuitous.

21

What is the standard of care for an onerous deposit?

An onerous depositary is bound to fulfill his obligations with diligence and prudence.

22

What is the standard of care for a gratuitous deposit?

A gratuitous depositary is bound to fuilfill his obligatiosn with the same care that he uses for his own property (may be lower standard than onerous)

23

What is a depositary's liability for losses?

All depositaries are liable for loss sustained by the depositor resulting from depositary's breach of standard of care.

24

Can the depositary use the deposited thing?

1. Generally, a depositary may not use the deposited thing without express or implied permission of the depositor. Unless 2. If the deposited thing is consumable and the depositary is permitted to consume or dispose of it, the contract is a loan for consumption, not deposit.

25

What is the depositary's duty to return the deposited thing?

Bound to return the deposited thing; if not place of return specified in contract, bound to be returned at the place deposit was made. 2. Depositary must also deliver all fruits that he has received from the deposited thing. 3. Despositary must return the thing whenever the depositor demands its return; if contract does not have turn, can return it at any time.

26

What happens when a thing is deposited with an innkeeper?

An inkeeper who accepts for deposit the personal belongings of guests is treated as a compensated despositary. An innkeeper is not treated as a despoistary when a safe is placed at the disposal of the guest in the guest's room. Inkkeeper's liability for stolen/damages personal belonging not deposited with the inkeeper is limited to $500 (if inkeeper has provided notice of safe deposit box)

27

What is conventional sequestration?

Occurs when the parties agree to deliver a contested thing to a depositary pending resolution of their dispute. Govered by the rules of deposit.

28

What is judicial sequestration?

Takes place pursuant to a court order and is governed by the rules of deposit to the extent that such rules are compatible with the nature of judicial sequestration; takes place according to court order.

29

What is a loan for use? What are the duties of a borrower?

1. A loan for use is a gratutious contract wheregy a lender delivers a nonconsumable thing to the borrower who must return it after he finishes using it. 2. Borrower must keep, preserve, and use the loaned thing as a prudent administrator. Unless the agreement permits other uses, he must use it according to its nature. Borrowner is liable for the breach of this duty.

30

What is a loan for consumption?

1. A contract whereby the lender delivers fungible and consumable things to the borrower who is permitted to consume the loaned things and to replace them with things of the same kind and quality. 2. Borrower must deliber things of the same kind/quality at the time and place agreed upon and, upon his failure to do so, is liable to interest from written demand.

31

What is a compromise? What are the form requirements for a compromise?

A contract whereby one or more parties make concessions to settle a dispute or uncertainty concerning an obligation or other legal relationship. 1. A compromise must either be in writing or recited in open court and capable of being transcribed.

32

What is an accord and satisfaction?

Compromise is alos made when the claimant of a disputed or unliquidated claim accepts a payment tendered by the other with the clearly expressed condition that acceptance of the payment will extinguish the obligation.

33

What is the effect of compromise?

A compromise can be rescinded for vices of consent, but cannot be rescinded for error in law or lesion. It precludes the parties from bringing a subsequent action based upon the matter that was compromised.