Major Topics Flashcards
(42 cards)
Principal-Agent Relationship
(1) Assent
(2) Benefit
(3) Control
Vicarious Liability of Principal for Intentional Torts
(1) Authorized
(2) Natural from nature of employment
(3) Motivated by desire to serve principal
Vicarious Liability of Principal for Torts by Independent Contractors
(1) Inherently dangerous activities
(2) Estoppel
Types of Authorization by Principal for Contract
(1) Express
(2) Implied (Necessity, Custom, Prior dealings)
(3) Apparent (Cloaked & Reliance)
(4) Ratification (Knowledge of Facts & Acceptance of Benefits)
General Partnership
Association of 2 or more persons who are carrying on as co-owerns of business for profit
(Key Factor: contribution of $ for sharing of PROFITS)
Priority of Distribution in Winding Up of General Partnership
(1) Outside creditors*
(2) Inside creditors (partners who loaned to partnership)*
(3) Capital contributions by partners*
(4) Profits & surplus
*These three must be satisfied. If partnership funds are insufficient, individual partners must contribute.
Limited Partnership
(1) At least 1 general partner & 1 limited partner
(2) Formation: filing certificate
(3) Control: general partner
(4) Liability: general partner (limited partners have limited liability- not obligations of LP itself)
Registered Limited Liability Partnership
(1) Professional service organization
(2) Formation: filing certificate (include profession)
(3) Liability: no partner personally liable for partnership’s debts/obligations (only for wrongful acts of themselves & their subordinates)
Limited Liability Company
(1) Members with same rights and limited liabilities of shareholders & partnership tax treatment
(2) Formation: filing articles of incorporation, publishing articles in 2 newspapers, designating Sec of State (operating agreement not req’d)
(3) Control: may control or may delegate to managers
(4) Limited Liability: limited (like shareholders)
(5) Limited Liquidity: cannot transfer full interest w/o majority vote or as stated in operating agreement; can assign interests in profits and losses
(6) Limited Life: dissolution on majority vote or as provided in membership agreement
Trust Requirements
(1) Settlor
(2) Delivery of legal title (formal transfer)
(3) Property (owned & identified)
(4) Trustee (lifetime, testamentary, non-resident alien rules)
(5) Beneficiary (definite & ascertainable)
(6) Intent to create trust (enforceable obligation; not precatory; trustee w/ duties)
(7) Lawful purpose
(8) Valid execution (writing, settlor & trustee signature, notary or 2 witnesses)
Pour-Over Gifts
(1) Trust executed prior to or contemporaneously with will
(2) In writing, signed, & acknowledged by 2 witnesses
Revocation of Totten Trust
(1) Withdraw all $
(2) Express (writing, name beneficiary & financial institution, notarized, delivered to bank)
(3) Will (same formalities as express)
(4) Death of beneficiary (goes to depositor)
Requirements of Uniform Transfers to Minors Act
(1) Gifts to custodian
(2) Irrevocable (terminates when child turns 21)
(3) Specifies it is made under UTMA
Non-Trusts
(1) Honorary- no human; gift to residuary
(2) Constructive- disgorge unjust enrichment from wrongful conduct (trustee conveys)
(3) Lifetime transfers as constructive trust- fraud in inducement or confidential relationship
(4) Resulting trust- trust fails (no PMRT in NY)
Exceptions to Spendthrift Protection
(1) Creditors furnishing necessities
(2) Child support & alimony
(3) Federal tax liens
(4) Excess income beyond that needed for support & education (“last resort”)
(5) 10% levy for judgment creditors
Supplemental Jurisdiction
(1) Case already in federal court
(2) Same transaction or occurrence (same nucleus of operative fact)
(3) Not subject to limitation: (a) Plaintiff (b) in case where diversity is only basis for SMJ (c) is trying to use to overcome lack of diversity
Removal Prohibited
DIVERSITY CASES where
(1) Any D is citizen of forum or
(2) More than one year after filing
Substantive Issues Under Erie Doctrine
(1) SOL
(2) Tolling SOL
(3) Elements of claim or defense
(4) Conflict of laws rules
Erie Doctrine: Tests for Substance v. Procedure
(1) Outcome determinative
(2) Balancing interests
(3) Avoiding forum shopping
Federal Procedure: Proper Venue
(1) Where all Ds reside (or where 1 resides if all are from the same state)
(2) Where substantial portion of claim arose or property is
(3) If not 1 or 2: Where there is PJ over D
Federal Procedure: Methods of Service
(1) Methods of forum state
(2) Methods of state in which service is effected
(3) FRCP:
(a) Personal- anywhere in forum state
(b) Substituted- usual abode, person of suitable age & discretion who resides at D’s abode
(c) Agent service
(4) Waiver by mail
Federal Procedure: Joinder of Proper Parties
(1) Same transaction or occurrence
(2) At least one common
(3) SMJ
Federal Procedure: Analysis of Necessary Parties
(1) Is party necessary? (complete relief, harm to absentee’s interest, possibility of multiple obligations due to absentee’s interest)
(2) If necessary, can she be joined? (PJ, SMJ)
(3) If cannot be joined, should court proceed or dismiss?
Federal Procedure: Intervention
As of Right: Interest might be harmed AND not adequately represented
Permissive: at least one common question
