Card Set Information

2012-07-14 23:29:45

Show Answers:

  1. Liability of principal for torts committed by agent
    • 1. There is a principal-agent relationship
    • 2. The tort was committed within the scope of that relationship
  2. Principal-Agent Relationship requires:
    • ABCs of agency
    • "Assent (informal, must have capacity)"
    • Benefit (conduct for principal's benefit)
    • Control (power to supervise manner of A's perf)
    • Sub-agents and borrowed agents almost never meet this test
  3. Liability for Independent Contractors
    • "Generally, do not satisfy ABC b/c lack of control"
    • Exceptions:
    • "1. Ultra-hazardous activity, considered non-delegable"
    • "2. Estoppel, you held out contractor with appearance of agency"
  4. Within the scope of control or independent contractors in tort liability?
    • "1. If within job description, likely within scope"
    • "2. Frolics are outside scope, detours are within scope"
    • 3. Agent intended to benefit principal -> likely within
  5. Liability for intentional torts of agents
    • "Generally outside the scope, so no liability"
    • Except:
    • 1. Authorized by P
    • 2. Natural from type of job
    • 3. Motivated by desire to serve P
  6. Liability for contracts entered by agent?
    • P is liable if authorized A to enter contract
    • 1. Actual express (oral OK except for land and SoF. revocable unless durable power of attorney)
    • "2. Actual implied (necessity, custom, prior dealing)"
    • 3. Apparent (P cloaks + 3rd party relies)
    • "4. Ratification (P knowledge + benefits, no alteration)"
    • Authorized agents not liable unless undisclosed principal
    • Duties owed to A by P
    • Compensation for its efforts and reimbursement for expenses
  7. Duties owed to P by A
    • 1. Duty of care
    • 2. Duty to obey
    • "3. Duty of loyalty (self dealing, usurping, secret profit) (recover losses and disgorge profits)"
  8. Formation of general partnership
    • No general partnership formalities
    • "Association, 2+ persons, carrying on, co-owners, business, for share of profit"
  9. Formation of limited partnership and RLLP
    • Filing certificate of limited partnership with state incl. names of GPs (All partners may now manage business w/o giving up limited status)
    • RLLP: Register statement of qualification with state plus annual reports (makes NO partner liable for business)
  10. Liability to third parties
    • General partners liable for all partnership obligations and each other's torts
    • Estoppel -> representers are liable as if partners
    • Limited partners + registered limited liability partners have limited liability
    • Dissociating partners retain liability until notice given to creditors or 90 days after filing notice of dissociation with state
  11. Relationship between partners
    • "1. Fiduciaries (Self-dealing, usurp, secret profit) -> accounting (losses + disgorge)"
    • "2. Only share of profits is liquid, transferable"
    • "3. Absent agreement: equal control, no salary, equal profits, losses like profits"
  12. "Dissolution, Termination, Winding up"
    • "Dissolution: absent agreement specifying event, one GP's express intent to dissociate"
    • Termination: Actual end of partnership
    • "Winding up: Period between dissolution and termination, partners liquidate partnership assets"
  13. Priority of distribution in partnership winding up
    • 1. Creditors (outside AND partner-creditors at same level)
    • 2. Capital contributions by partners
    • 3. Profits and surplus (shared equally absent agreement)