Term
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Definition
duty to cooperate
A principal must assist and cooperate with the agent in the performance of his duties and do nothing wrongful to prevent performance. |
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Term
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Definition
| other courts hold that while a principal may not interfere with an exclusive agent by appointing another agent to compete, the principal herself can compete with the agent. |
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Term
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Definition
| A principal is clearly not responsible for compensation to a subagent if there was no authority to hire the subagent. Nor is the principal liable for compensation to a subagent merely because the agent was authorized to hire subagents. The subagent must look to the agent for compensation. |
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Term
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Definition
| dale hires amber to decorate his home. dale authorized amber to hire subagents. Hired carpet people lay carpet and try to recover compensation for dale. Since the carpet people were performing the work of amber, they must look to her for compensation. |
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Term
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Definition
| The principal has the duty to indemnify the agent in accordance with the terms of the agency contract and for all expenditures or losses incurred by the agent in the discharge of his authorized duties. If the agent acted without authority, then his right to indemnification arises only if the principal benefited from the transaction. |
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Term
| Duty to deal fairly and in good faith |
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Definition
| A principal has the duty to deal with the agent fairly and in good faith, including a duty to provide the agent with the information about risks of physical harm or loss that the principal knows, or has reason to know, or should know are present in the agent's work but which are unknown to the agent. |
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Term
| indemnification by principal |
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Definition
| The agent is entitled to indemnification from the principal pursuant to the terms of the agency contract and for all expenditures or losses incurred in performing authorized duties on behalf of the principal. |
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Term
| no right to indemnify for unauthorized or illegal acts |
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Definition
| The agent is generally not entitled to indemnify for losses resulting from the acts that are unauthorized and do not benefit the principal. Additionally there is no right to indemnification if the agent acted illegally or negligently. |
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Term
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Definition
| If indemnification is otherwise proper, an authorized subagent can recover against the principal or agent, because the subagent is a fudiciary of both. If the subagent proceeds against the agent, the agent has a right to indemnity in turn against the principal. |
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Term
| Lien against property of prinicpal |
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Definition
| absent an agreement to the contrary, the agent has a right to a lien on the principal's property in his lawful possession up to the amount of his compensation (or right to indemnity). |
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Term
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Definition
| The subagent has a lien against the agent's property inher possession for services and expenses and against the principal's property in her possession to the extent of the agent's rights in such property. |
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Term
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Definition
| in addition to the above rights, an agent may be entitled to withhold further performance under the agency contract, to claim a set off or counterclaim in any action brought by the principal, or to demand an accounting by the principal. |
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Term
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Definition
| express ad implied contractual duties, reasonable care in performance, obedience, notification, loyalty, segregation and accounting of property, and confidentiality |
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Term
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Definition
| express and implied contractual duties, cooperation, compensation, indemnification, aviodance of negligence, and to deal fairly and in good faith. |
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Term
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Definition
| marriage is a personal relation arising out of a civil contract between a man and a woman to which the consent of the parties capable of making that contract is necessary. |
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Term
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Definition
| the renewal of his group term life insurance policy is not property when the insured has no enforceable right to renew. If he would of become unisurable, it could of had community value, if he would of had the right to continue his policy. |
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Term
| seperate ownership/property and exceptions |
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Definition
| the property was acquired by gift (exception:gift traceable to labor can be community property and another exception is classification rules can be altered by agreement between the spouses). |
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Term
scope of employment
relevant factors |
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Definition
| whether the act was authorized by the employer, the time, place and purpose of the act, whether the act was one commonly performed by employees on behalf of their employers, the extent to which employer's interests were advanced by act, whether the employer furnished the means (truck) by which the injury was inflcited, whether the employer had reason to know that the employee would do the act in question, whether the act involved the commission of a serious crime. |
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Term
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Definition
| gratuitous acts are treated the same as other acts within scope if it advances employer's interests. |
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Term
| exception-fraud or duress |
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Definition
| an agent who assists his prinicpal in the commission of fraud or duress is not liable to the injured party if the agent had no knowledge of fraud or duress. The knowledge of the fraudulent prinicpal is not imputed to the agent. |
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Term
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Definition
| an invalid marriage wherin one or both acted in good faith. If both the parties at least go through marriage ceremony, good faith is presumed. |
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Term
| effectof one party's lack of good faith |
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Definition
| a spouse aware of the invalidity of the marriage probably could not invoke the rules applicable to putative marriage, although the other spouse in good faith would be able to do so. |
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Term
| the courts look for a sunjective belief and a? |
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Definition
| objectively reasonable belief for a marriage. |
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Term
| putative surviving spouse |
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Definition
| get's worker's compensation and pension and retirment benefits (as long as no lawful spouse claims it). |
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Term
| no common law marriage in california |
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Definition
| unlike sevral states, california does not recognize non ceremonial common lain california. It must be objectively reasonable. |
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Term
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Definition
| an employer or other principal is subject to tort liability for any loss sustained by 3rd persons as a result of misrepresentations made by an employee or other agent whenever the making of representations was actaully expressed or impliedly or apparently authorized. |
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Term
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Definition
| akways remember to check to see whether you can hold the principal directly liable for the tort. Ask yourself if the principal did something or failed to do something that makes her directly responsible for the agent's tort. |
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Term
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Definition
| a principal is liable for the torious act of her agent if the prinicpal was negligent in hiring, training, or supervising the agent, the principal was charged with care of the person injured by the agent's act, or the principal fails to exercise due care in handling a fact or condition of which the agent has knowledge and which knowledge is imputed to the principal. |
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Term
| non-respondeat superior liability of principal for agent tort's |
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Definition
| authorization-a principal isliable for the tortious act of her agent if she authorized or directed the agent to perform the act. |
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Term
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Definition
| if a man and woman in california meet the requirments of common law marriage and no marriage ceremony was attempted. 1st look to see where the common law marriage occured. If it occured in a jurisdiction where common law marriage is lawful, then the marriage is valid in cal. if not it is not even considered to be a putative marriage in cal. due to the objective reasonableness requirement. |
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Term
| park north general hospital v. hickman |
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Definition
| plaintiff sued hospital for negligently hiring doctor. Since hopsitals have a duty to appoint doctors with care for patients well beong the hospital can be held directly liable |
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Term
| aluminum co. of america v. ward |
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Definition
| The rule for borrowed servants is total control in which in this situation the general employer still had partial, so liabitlity sticks with general employer. |
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Term
| exception-employee immune from liability |
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Definition
| indemnity is denied if the employee was immune from liability in the first place. |
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Term
| employer's right to indemnification |
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Definition
| if the employer is held liable for an employee's torts, the employer can hold the employee in turn, the employer has a right to indemnification against the employee for any damages the employer must pay to a 3rd person because of the employee's wrongful acts. |
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Term
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Definition
| moreover, if the employee is exonerated or released from the liability, this generally operates to release the employer from vicarious liability as well. |
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Term
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Definition
| however, the victim is entitled to only one recovery against eiher party will bar recovery against the other. |
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Term
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Definition
| because this liability is imposed for the protection of 3rd perosns, the employer cannot contract with her employee to insulate herslef from liability. |
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Term
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Definition
| such liability is join and several with that of the employee for his won acts:the employer can be sued alone, or she can be sued togther with the negligent employee. |
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Term
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Definition
| the primary characteristic of an independent contractor is that the employer has no right to control how the work is to be performed. |
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Term
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Definition
| a minor may make a valid pre marital agreement or other marital property agreement if the minor is emnacipated or is otherwise capable of contracting marriage. |
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Term
| statute innaplicable to mixing situations |
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Definition
| no writing is required where ownership changes due to a mixing of community and seperate funds. (852). |
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Term
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Definition
| had home in joint tenancy-husband dies-his will says the house was in community property and his half should go to his kids- the rule is you cant have any hidden intentions and the property remains in joint tenancy. |
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Term
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Definition
| prior to 1975-w and h have a home-in both their names. half is wifes, and half of husbands half is wife's also. Wife gets to keep her seperate property. |
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Term
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Definition
| where there is no proof as the time of acquisition of an asset, a few cases have held that proof that either spouse possessed the asset during marriage will give rise to the general pro-community presumption. |
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Term
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Definition
| wife complained house was bought with community funds-house was purchased during marriage- there was a presumption of community property- and husband failed to meet the burden of proof because he could not trace- the court found the house to be community property. |
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Term
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Definition
| at least one spouse believed in good faith that the marriage was valid, but in fact it was void or voidable, due to an impediment (the belief also must have been objectively reasonable). |
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Term
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Definition
| quasi marital property would apply here where acquisitions divided as it were community property. Has legal status of spouse and can sue for wrongful death of spouse unless there is a lawful spouse. Has right to recieve alomony as long as the partner acted in good faith. |
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Term
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Definition
| quantum meruit is probably unavailable for household services rendered with expectation of monetary reward if supplying sex was an inseperable part of the arrangement. |
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Term
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Definition
| a non-marital partner may recover in quantum meruit for the reasonable value of household services rendered (less the reasonable value of support recieved) if it can be shown that he or she rendered services with the expectation of a monetary reward. |
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Term
| legal status of cohabitant |
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Definition
| legal strangers (cannot sue for male's wrongful death, not entitled to female's unemployment compensation), and cannot collect for tort damages. |
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Term
| result if parties agree to simply share ownership |
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Definition
| under marvin decision- a general sharing agreement can be implied from the conduct of male and female and would be classified as tenancy in common. |
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Term
| public policy limitations |
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Definition
| a contract between the parties will be unenforceable if the sexual acts form an inseperable part of the consideration for the agreement. In an express marvin contract, the parties may agree to mutually support eachother financialy so long as both live together- no alimony |
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Term
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Definition
cohabitants agreed(expressly) or impliedly to share ownership of the acquisition of each during their relationship. If law did no create co-ownership at the moment of acquisition by labor of assets, a court will divide them 50-50.
No legal status and cant sue for wrongful death, no alimony, unless the agreement expressly creates this right. |
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Term
| result if there is no proof of agreement |
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Definition
| absent proof of an express or implied sharing agreement, each cohabitant own seperately his or her acquisition. |
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Term
Marvin relationship(not putative)
agreement by cohabitants to share acquisitions |
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Definition
| where two persons live together in sexual intimacy and have an express or implied contract to share ownership of the acquisition of each during the relationship- their cohabitation can be called a marvin relationship. Cohabitation is essential to marvin based claims, but it need not be full time. |
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Term
| if husband dies testate (cohabitated with both wife and putative wife) there is 4 possible solutions: |
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Definition
1. 50% to w-1, 50% to w-2, and none to legatees
2. 25% to w-1, 25% to w-2, and 50% to legatees
3. 1/3 to w-1, 1/3 to w-2, and 1/3 to legatees
4. 3/8's to w-1, 3/8's to w-2, and 1/4 to legatees
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Term
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Definition
| the earning of wife 1 and husband are community property. W-2 has no authority to claim 1/2 Husband from W-1. |
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Term
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Definition
| husband's earnings are both community property and quasi marital property at same time (w-1 and w-2 each recieve one half). |
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Term
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Definition
| the earnings of w-2 are her seperate property-quasi marital statute does not cover two wife situations where husband is cohabitating with both. If he were to recieve half, w-1 has a logical claim to 1/2 of this half, since acquisition occurred during lawful marriage while spouses cohabitated and was not by gift, will or inheritance. |
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Term
| living apart doctrine usually determines result |
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Definition
| in most bigamous marriages, the twice married person, say husband, will have seperated from w-1, before marrying w-2. Under the living seperate and apart doctrine w-1 has no claims to husbands post-seperation acquisitions by labor, although on his death she can claim as heir part of his seperate property. And w-2 can have no claims on pre-second marriage acqusitions. |
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Term
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Definition
| when analyzing the property rights of participants in a putative marriage, you should 1st determine whether either participant is still legally married to another person. Property acquired during a putative marriage may be divided differently if one spouse is still married. |
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Term
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Definition
| if a putative marriage is invalid, because it is bigamous, there may be a lawful spouse of one or both of the parties, who can also by claim to acqusitions of the bigamist spouse. |
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Term
| the term widow or surviving spouse in death includes: |
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Definition
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Term
family code 770
seperate property of married person |
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Definition
seperate property of a married person inlcudes 1. all property owned by the person before marriage 2. all property acquired by the person after marriage by gift, bequest, device or descent. 3. the rents, issues, and profits of the property described in this section.
4. a married person may with out the consent of the person's spouse convey the persons seperate property. |
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Term
sec 220. def. of a servant in determining whether one acting for another is a servant or an independent contractor:
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Definition
| 1.the extent of control over the details of the work 2. whether the one employed has a distinct business 3. the work is supervised 4. skill required 5. who supplies the instruments 6. length of time employed 7. method of payment 8. whether the work is part of the regular business of the employer 9. if parties believe they created a master/servant relationship 10. whether the principal is or is not im business. |
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Term
| the first step in applying the doctrine is to: |
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Definition
| determine whether the agent is an employee as opposed to an independent contractor. The key is control, does the employer retain control over the manner in which the agent performs? If so, the agent is an employee, if not, he is an independent contractor. |
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Term
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Definition
| 852- a transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. Rolls royce went to son, and property went to evelyn as her seperate property. 1. a writing that satisfies the statute of frauds and an expression of intent to transfer a property interest. |
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Term
| exception to pro-community presumption |
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Definition
| 802. provides where a person dies more than 4 years after divorce, the presumption that property acquired during marriage is community property (of the former marriage) does not apply to the assets in the person's estate. |
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Term
| termination of putative marriage by death of a spouse |
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Definition
| the surviving putative spouse has the same right as a lawful spouse to elect against the decedent's will in order to cliam half of what would have been community property had there been a lawful marriage. surviving spouse also has full intestate rights to mate's death. |
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Term
| remedies at annulment of putative marriage |
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Definition
| some older cases have allowed a good faith spouse to assert quasi-contractual claims against the other party for the value of services rendered in excess of consideration recieved. |
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Term
| effect of knowledge of the impediment |
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Definition
| one case has said that good faith or putative status ends the moment she learns of the impediment to the marriage. |
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Term
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Definition
| within scope if act advances employer's interest |
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Term
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Definition
| the recipient must have had a good faith belief in the marriage to get alimony. |
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Term
| marriage of mctiernan and dubrow |
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Definition
definition of goodwill- property of an intangible nature, expectation of continued or futured patronage.
Unique skill- lawyers are a dime a dozen. An inventor or artist is unique for example. We can contest goodwill if the service is unique. |
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Term
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Definition
| husband went to law school, wife wants reimbursement for the community. 2641- has to enhance the earning capacity. |
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Term
| employee going to and from work |
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Definition
| an employee's actions of going to and from work or meals is ordinarily considered outside the scope. |
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Term
| exception- special errand rule |
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Definition
| however, when the employee's going to or from work also involves some service for employer is with in scope |
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Term
| exception- traveling salespeople |
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Definition
| likewise, a traveling salesperson compelled by work for long perods of time is within the scope the entire time he is away, even while not actually at work, as when he is returning home. |
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Term
| substantial departure required |
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Definition
| again, the ceses turn on the degrees to which the employee was serving his own interests. Only a substantial deviation or departure from the employer's business will take the employee outside the scope. If the main purpose of the activity is still the employer's business it does not cease to be with in the scope merely because of incidental personal acts, slight delays, or deflection from the direct route. |
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Term
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Definition
| in many cases, the employee may be acting partly for his own interests and partly for his employer. If any substantial part of the act was done for purposes of the employer, that is generally sufficient to impose liability on employer. |
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Term
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Definition
| eli instructs sally to delver goods in town and sally decides to go to the bank on way to perform both tasks, sally injures person, eli is liable. |
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Term
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Definition
| a principal is liable for the tortious act of her agent if 1. at the time of the act, the agent purported to act on the principal's behalf 2. the principal accepts the benefits of the act knowing all relevant factors. |
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Term
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Definition
| within the scope if any substantial part of the act was done for purposes of the employer. |
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Term
| acts that depart from the employer's business |
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Definition
| with in scope if departure is minor. |
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Term
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Definition
| within scope if employee was on a special errand for amployer or employee is on a business trip. |
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Term
| use of unauthorized instrumentalities |
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Definition
| within scope unless instrumentality is substantially different from that authorized. |
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Term
| use of employer's instrumentalities |
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Definition
| within scope if use is for purposes of advancing employee's interests. |
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Term
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Definition
| within scope if act is incidental to employee's performance of assigned work or employer exercises control over personal act, even if off work premises and times. |
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Term
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Definition
| treated the same as affirmative acts- within scope if it advances employer's interests. |
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Term
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Definition
| within scope if act is related to carrying on employe's business. |
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Term
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Definition
| when the pro-wife presumption arises but evidence of community ownership is received, the special presumption converts to a rule placing the burden of proof on the pary seeking a community characterization. |
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Term
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Definition
| he was acting on ships business with mixed motives-the meaning of actions and intentions is the test- he thought he was furthering the ship's business when he called hands to deck as he was authorized to do so. Because he was yelling to turn to-this was evidence of his intentions. |
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Term
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Definition
| Mrs. cox telephone installer. The employer instructed cox not to employ a assistant with out express authority and therefore she was not in scope. In contracts employer can delegate scope but not torts. |
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Term
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Definition
| flipping knife- intentions are all about self gratification and greed. court found even employees can take pauses or breaks and exhibit objects, its in the nature of people, and people should be expected to flip and fiddle with things which employer's should forsee. |
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Term
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Definition
| chevron found to have an employee employer relationship. Duck test- sub agent must have authority, necessity, and emergency to which they had that here. Chevron had a sign out front- apparent authority- it created the appearance that chevron was employer therefore must by vicariously liable. |
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Term
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Definition
| when control is split is meaningless- reliability must be on the employer that can best bear the risk. But regardless both special employer and general were found liable due to control. |
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Term
| 850-transmutation by agreement or transfer |
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Definition
| subject to sections 851 and 853- inclusive married persons may by agreement or transfer with or without consideration any of these: transmute community to seperate, transmute seperate to community, transmute seperate from one to the other. |
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Term
| advantages of non-contractual remedies |
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Definition
| in seeking quantum meruit, the non-marital partner claims as credito rather than as a co owner and can reach seperate property. Could also might be able to get constructive trusts. |
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Term
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Definition
| husband uses community proerty to make a mortgage payment on land in his name, all prior payments having been made with husbands seperate funds. The community buys in to title to the property despite no express writing. |
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Term
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Definition
| 852- a transmutation of real or personal property is not valid unless in writing by an express declaration and is not a gift of substantial value. |
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Term
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Definition
| dale is to drive mary into town with truck, he takes car instead, dale is still liable because there is no greater risk of harm. |
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Term
| distinguish permissive use statutes as to vehicles |
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Definition
| some jurisdictions have permissive use statutes that impose liability on the owner of a vehicle for any damages negligently aflicted by a person driving it with owner's permission (owner's express or implied consent) if consent doesnt need to be within scope. |
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Term
| presumption wife is not the only transferee |
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Definition
| if the pre-1975 written instrument names wife and one or more other transferees as owners, section 803 presumes that wifes interest in the contenacy is her seperate property. |
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Term
| definitions: premarital agreement and property |
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Definition
| premarital agreement means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Property means an interest present or future, legal or equitable, vested or contigent, in real or personal property, including income and earnings. |
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Term
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Definition
| two prong test- the objective test- what have you shown to the world you want a divorce. |
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Term
security bank v. cooper
elk lodge members-non profit |
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Definition
| they signed the bylaws and therefore were active members |
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Term
| implied authority-"incidental representations" |
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Definition
| when the principal authorizes another to deal on her behalf in transactions where representations about subject matter are customarily made, she is deemed to have impliedly authorized all such representations unless that authority was specifically with held. |
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Term
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Definition
| principal wil be liable if agent had authority to make statements and made false ones. |
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Term
| lawful wife may benefit financially |
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Definition
| the half of the female's earnings that would go to husband under any sharing contract between husband and female will be community property of husband and wife. If he has not sperated from her during the living arrangment of wife and female. If female earns more than husband, wife might thereby benefit monetarily from the marvin sharing contract. |
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Term
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Definition
| eli sends dale to deliver a package to tom. dale stops at gas station and pucnhes someone. The act was not related to job, eli not liable. |
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Term
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Definition
| eli hires randy to repossess a car. Randy punches owner to get car. Owner can sue eli because randy was in nature and furthering interest of eli. eli is liable. |
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Term
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Definition
| again, the factual issue is whether the intentional act is related to carrying forth the employer's business. Was there personal reasons or was there employer's business. |
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Term
| inentional torts by employee |
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Definition
| liability under respondeat superior extends intentional acts by the employee only if the acts occur with in the scope of employment. |
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Term
| distinguish representations |
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Definition
| authorization is of crucial importance when liability for the representations of another are concerned. |
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Term
| violations affecting authorization |
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Definition
| however, when the employee in violating the employer's instructions goes beyond the duties for which he is hired, his act may be outside the scope of his employment, and the employer is relieved of liability for the tortious consequences. |
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Term
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Definition
| on the same theory, even acts that are specifically forbidden by the employer may be within scope, an employer cannot avoid responsibiltity for an employee's negligence by telling the employee to act carefully, or to never commit a tort. |
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Term
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Definition
| 803- husband bus driver, wife realtor:all property acquired by a married woman before 1975-even though property was bought with community funds is wife's seperate property. |
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Term
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Definition
| 2640-in 1984 was enacted and after 1985 you can retain your seperate property in contributions. |
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Term
| respondeat superior is a rule of civil liability-the doctrine does not apply in criminal law |
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Definition
| the employer cannot be held criminally liable for employees act unless she somehow participated in the act. |
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Term
| employee's use of employer's vehicle, equipment etc. |
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Definition
| the employer is liable only when the instrumnetality is being used for the purpose of advancing the employer's business interests, rather than the employee's personal affairs. (must be within scope). |
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Term
| direct liability v. vicarious liability |
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Definition
duty-breach-damage is direct liability
employee employer relationship is all you need for vicarious liability. |
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Term
|
Definition
| the ca. supreme court has unequivocally held that the burden of proving seperate ownership canbe met by a mere preponderance of evidence. Nevertheless, some court of appeals cases incorrectly say that only a clear and convincing evidence will meet the burden. |
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Term
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Definition
| while the employer-employe relation is usually created by an express agremment, whether oral or written, it may also be implied from the circumstances or conduct of the parties. |
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Term
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Definition
| if a 3rd peron hurts an employee, the employer could sue for recovery for loss of work. |
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Term
| employment by estoppel (apparent or ostensible employment) |
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Definition
| If a person inentionally or negligently creates appearance that another is in her employ, and a 3rd perosn is hurt, the employer would be liable. |
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Term
| statutory benefits for registered domestic partners |
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Definition
| surviving partner recieves the same share as would a lawful surviving spouse would. |
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Term
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Definition
| time,energy and skill is a community property-she gets 1/2 ranch. |
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Term
special presumptions
transfers to married women |
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Definition
| In addition to the general pro-community presumption, there is a special presumption favoring seperate property classification for transfers to married women in writing prior to 1975. (803). |
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Term
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Definition
| the mere fact that one party has not requested the other to render services does not prevent an employer employee relationship, from arising if the employer knows that services are being rendered and accepts the benefits. |
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Term
|
Definition
| generally, any person having the capacity to contract may employ an agent or employee. Thus minors, and incompetents, lacking contractual capacity cannot appoint employees and cannot be held vicariously liable. |
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Term
| authorization by emploer not required |
|
Definition
| it is not necessary to show that the employer authorized or permitted the particular act that caused the injury if the act occurred in the scope of the employee's regular duties and employment. |
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Term
|
Definition
| an employer may be liable for injuries caused by an employee's personal acts (smoking) if the act is incidental to the employee's performance of assigned work. Moreover, even a personal act performed off the employer's premises and while the employee is not engaged in work will be considered to be within the scope of employment if the employer exercises control over the employers perosnal acts. |
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Term
| eli gives sandy a bike to go to work, sandy rides her bike to park on weekend and injures someone. |
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Definition
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|
Term
| allocation of burden of proof when general presumption does not arise |
|
Definition
| if no general presumption arises, the burden of proof would be governed by the normal rules of evidence. |
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Term
|
Definition
| earnings and accumulations during period of seperation are seperate property |
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|
Term
|
Definition
| normally, a general employer who lends or leases her equipment with an operator to a special employer is presumed to retain right to control over operator. hence would be liable, unless the operator must take orders from the special employer. |
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|
Term
|
Definition
| whoever has the right to control is liable |
|
|
Term
| emergency authority to hire |
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Definition
| even an ordinary employee may have authority to hire and employ a subservant in an emergency. And employer is liable. |
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Term
| distinguish employer negligent in hiring physician |
|
Definition
| the employer may be liable if it appears the employer was negligent in hiring the physician. This is not an application of respondeat superior but rather is a case direct liability. |
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|
Term
| an employer is generally notliable for the torts of a physician |
|
Definition
| because too skilled of a profession to be able to control duties. |
|
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Term
|
Definition
| the employer employee relation requires that the employer have the right to control employee's services and means of doing work. Thus, if the employer is merely bargaining for a result and retians no such control it is independent contractor. |
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Term
|
Definition
| if the agent was not authorized to emply another, there is no relationship between the employer and the subagent hired, no liability |
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|
Term
| void marriage, effect on agreement |
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Definition
| if a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result. |
|
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Term
|
Definition
| however, no special capacity is required to be an employee, therefore an amployer can be held vicariously liable for torts of minors. |
|
|
Term
| doctrine of respondeat superior |
|
Definition
| under the respondeat superior an employer will be liable for all torts committed by her employee within scope of employment. |
|
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Term
|
Definition
| a specific type of principal one who employs agents to perform services in her affairs and who has the right to control the physical conduct in performing services. |
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|
Term
|
Definition
| a specific type of agent that is employed to render services of any type other than the pursuit of an independent calling and who remains under control of the employer in perfoming such services. |
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Term
|
Definition
| pre-marital agreement cannot promote divorce-against public policy. |
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|
Term
| def. of community property |
|
Definition
| except as provided in statutes, defining seperate property, all property real and personal, wherever situated, acquired by a married person during marriage while domiciled in this state is community property. |
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|
Term
| possession plus long marriage |
|
Definition
| finally, another case has held that the general presumption can apply (despite failure to show acquisition during marriage) if the evidence shows possession of the property by either spouse at the end of a long marriage. |
|
|
Term
| change in form may meet the during marriage test |
|
Definition
| note, that even under the during marriage test, a change in the form of the asset supplies a new acquisition date that should raise the procommunity presumption. |
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|
Term
| rides to unauthorized passengers |
|
Definition
| generally not within scop unless employer authorized invitation to passenger. |
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|
Term
| specifically forbidden acts |
|
Definition
| within scope if employee is acting within scope of duties for which he was hired. |
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|
Term
|
Definition
| community presumption only should arise if acqusition during marriage can be shown. |
|
|
Term
| effect of contrary evidence on general presumption |
|
Definition
| if evidence is there presumption is wiped out. |
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|
Term
|
Definition
| the partnership generally cannot recover against third parties for negligent injuries to one of the partners. |
|
|
Term
| effect of husband wife agreement on thrid parties |
|
Definition
| all transmutations that are valid between the spouses are also binding on 3rd parties who become creditors after the transmutation occurs. |
|
|
Term
|
Definition
| employee employer relationship + act within scope |
|
|
Term
|
Definition
| lady sueing newspaper- there was no necessty, emergency or authority and the court concluded bruce was not an employee of paper and therefore not liable for him. |
|
|
Term
|
Definition
| e tells m to use bus. M drives car and hits someone; is substantially different. e is not liable. E would of been liable of he had not told m what to drive. |
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|
Term
| summary of 4 approaches to treatment of quasi marital property before annulment |
|
Definition
1. treat property the same as community property unless one spouse acted in bad faith then her acquisitions are treated as community and the other spouse in good faith treated as seperate peoperty.
2. treat property as a tenacy in common
3. treat property acquired through the spouse's business as partnership property and treat the rest of the property as seperate property.
4. treat property as seperate property until annulment, unless title is taken in joint tenancy. |
|
|
Term
| conduct of a servant is within the scope of employment, if and only if: |
|
Definition
a. it is of the kind he is employed to perform.
b. it occurs substantially within the authorized time, space and limits
c. it is actuated, at least in part, by a purpose to serve a master
d. if force is intentionally used by the servant against another, the use if force is not unexpectable by the master. |
|
|
Term
|
Definition
| if the facts of a question show acquisition during marriage, you should state that this raises the pro-community presumption. If the facts do not show the itme of acquisition, note that the during marriage test is most often the law. |
|
|
Term
|
Definition
| one of the most likely ways in which your professor will test scope of employment is to have an employee deviate from the employer's business and undertake personal business. While undertaking the personal business, the employee will commit a tort. Be sure to discuss whether there was a substantial deviation (frolic) or a minor (detor) from the employee's business. The greatwe, the more likely it will be considered outside of scope and e not liable. |
|
|
Term
| distinguish independent contractor |
|
Definition
| an independent contractor, like an employee is hired for physical services and not in a representative capacity. However, the independent contractor contracts with the employer only as to the specific results to be accomplished, not as to the means by which the work is to be performed. Ind. contractor renders services in the cause or an independent occupation or calling. |
|
|
Term
|
Definition
| the principal can be held liable for negligently hiring, training, or supervising the agent, appoints a contractor to do a non-delegable act, or a highly dangerous activity, or the principal will be liable for misrepresentations the agent makes authorized by the principal. |
|
|
Term
|
Definition
| if the special employer directs the employee to perform a specific act, he will be liable as well. |
|
|
Term
|
Definition
| presumption of community property only should arise after evidence that posession during the marriage has been found. |
|
|
Term
|
Definition
| whoever had the right to control is liable |
|
|
Term
| factors to consider in determining who has the right to control |
|
Definition
| 1.the extent of control either employer exercises over the employee's work 2. does the employee provide a unique service 3. who has primarily control over the employee's work 4. is there a stated duration for the employment 5. whether paid salary or a certain sum for a particular task 6. whether the equipment is supplied by the general or special employer. |
|
|
Term
|
Definition
| the agreement and the writings executed was not done under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement. |
|
|
Term
|
Definition
| anesthesiologist and doctor being prosecuted. captian of the ship doctrine-the physician in charge has right to control over all when operating. |
|
|
Term
| overcoming pro-wife special presumption |
|
Definition
| if community funds were used it could be overcome. |
|
|
Term
| acquisition while living seperate and apart |
|
Definition
| id facts show acquisition before divorce but after seperation and cannot trace, is probably community property but not definite. |
|
|
Term
| result if parties agree to live in community |
|
Definition
| if male and female want things to be community like a marriage, the contract is not necessarily void. If male uses credit charges like he is her husband, the husband could be estopped to creditors that earnings are tenancy in common so that male's creditors can reach all such earnings. |
|
|
Term
|
Definition
| where husband is named transferee along with wife and the instrument describes them as husband and wife but does not specify the form of ownership-it is community property under 803. |
|
|
Term
| community property with right of survivorship |
|
Definition
| a document of transfer can expressly annex a right of survivorship to community property. This right is severable in the same manner as a joint tenancy. Community property with right of survivorship is subject to the management and creditor's rights rules of community property, not those applicable to joint tenancy which is a form of seperate property. |
|
|
Term
|
Definition
| may not waive right to recieve alimony unless represented by independent counsel when the agreement was signed, and not done under duress and must be conscionable. |
|
|
Term
| effect of wife's signature |
|
Definition
| post 1984, not enough, pre-1984 was enough to be conisidered a transmutation. |
|
|
Term
|
Definition
| title in a wife's name raised a presumption of seperate ownership by her. |
|
|
Term
| situations in which transmutation may be inferred or presumed. traditional gifts |
|
Definition
| if one spouse gives the other a present on a holiday, wrapped under pre 1985 law could be considered a transmutation. But the nature of the funds used to purchase the asset would control classification of the property. |
|
|
Term
|
Definition
| was agent authorized to make representations, if instructed (express authority) or representations are customarily made (implied). If neither can still be liable if principal placed the agent in a postion to decieve. |
|
|
Term
|
Definition
| not effective because a will does not have legal effect until the testator dies. |
|
|
Term
| possession plus long marriage test |
|
Definition
| another case has held that the general presumption can apply,despite failure to show acquisition during marriage, if the evidence shows possession of the property by either spouse at the end of a long marriage. |
|
|
Term
|
Definition
| normally, a general employer who lends or leases her equipment with an operator to a special employer is presumed to retain the right to control the operator. Unless the operator takes orders from the special emplyer. |
|
|
Term
|
Definition
| while the employer employee relationship is usually created by an express agreement (whether oral or written) it may also be implied from the circumstances or conduct of the parties. |
|
|
Term
| possible unlimited presumption |
|
Definition
| pro-community ownership attaches without any proof |
|
|
Term
| conduct of a servant is in scope if: |
|
Definition
| 1. it is of the kind he is employed to perform. 2. it occurs substantially in the authorized time, space and limits. 3. it is actuated, at least in part, by a purpose to serve the master 4. if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. |
|
|
Term
| effect of husband and wife agreement on third parties |
|
Definition
| all transmutations that are valid between the spouses are also binding on 3rd parties who become creditors after the transmutation occurs. |
|
|
Term
| requirements for general pro-community presumption |
|
Definition
| the proof that must be presented by the party seeking to rely on the pro community presumption is unclear. |
|
|
Term
| pro-community presumption |
|
Definition
| proof that the asset was acquired during marriage |
|
|
Term
|
Definition
| a representative relationship is one that enables a person to acquire rights and duties by consensual transactions on behalf of somebody else. |
|
|
Term
|
Definition
| domestic partners do not have putative spouse rights/recognition. |
|
|
Term
|
Definition
punitive damages should punish wrong doing-we shouldnt punish an employer for being an employer.
-complicity rule-a. the principal authorized the doing b. agent was unfit and principal was reckless in hiring him c. the agent was employed in a managerial capacity and was in scope d. the principal or the managerial agent ratified or approved the act. |
|
|
Term
|
Definition
| this is the power that the principal manifests to third parties that the agent has. A principal will be bound by an agent's acts if a third party reasonable believes, based on the principal's manifestations to the third party, that the agent had authority. |
|
|
Term
|
Definition
| arises when the principal intentionally or carelessly causes a third party to believe another to be his agent, and the third party detrimentally relies on the belief. whereas apparent authority contractually binds the principal, estoppel merely makes the principal liable for the third party's resulting losses. |
|
|
Term
| even if an agent's authority has terminated, any apparent authority: |
|
Definition
| continues until third parties are notified of termination. |
|
|
Term
| actual authority ends when: |
|
Definition
| agnecy temr expires, agency accomplishes purpose, change of circumstances, by death or incapacity upon notice, by agreement of the parties, or of a suspension of powers. |
|
|
Term
| exception to pro-community presumption |
|
Definition
| 802, provides where a person dies more than 4 years after divorce, the presumption that property acquired during marriage is community property (of the former marriage) does not apply to the assets in the person's estate. |
|
|
Term
|
Definition
| when there is a pro wife presumption- burden of proof lies on person trying to say it was community. |
|
|
Term
|
Definition
| remember that community property law will not apply even though male and female agree to share community. Such acquisitions will likely be held in tenancy in common, unless the couple is estopped from denying community status to creditors who would benefit from such a status. |
|
|
Term
|
Definition
| was not fully advised of financial status and obligations of the other party, did not waive such lack of disclosure in writing, could not reasonably have obtained the info. on her own. |
|
|
Term
|
Definition
| when analyzing the validity of an antenuptial agreement, watch out for a party who is not represented by counsel. If so the agreement will be held involuntary unless certain requirments are met. In addition all waivors of alimony will be invalid if not represented by counsel when the agreement was signed. |
|
|
Term
|
Definition
| the antenuptial agreement will be involuntary if not represented by counsel at the signing, unless that party was advised to consult an attorney and expressly waived that right in a seperate document having had 7 days to examine document and seek counsel. Also, was fully informed of the basic effect of agreement and rights he was giving up and signed a statement stating this. |
|
|
Term
| exceptions- no writing required |
|
Definition
| 852- a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal mature, used soley and principally by the spouse to whome the gift was mad and not substantial in value of marriage. |
|
|
Term
| employee's use of unauthorized instrumentalities |
|
Definition
| a more difficult problem arises when the employee uses some vehicle, equipment, etc. in performing the employee's business and the employer has not authorized the use. The cases hold that if the instrumentality used is substanitally different from that authorized, the use of the instrumentality must be deemed outside the scope and employer not liable. What is substantially different is generally measured by determining whether any greater risk is involved in the instrumentality used. |
|
|
Term
| authority to make representations |
|
Definition
| The injured party need only establish that the agent had authority to make statements cocnerning the subject matter invloved. Such authority may be express or implied from the circumstances or based on the principal placing the agent in a position to deceive. |
|
|
Term
|
Definition
| pro-community presumption, pro-wife presumption and presumption against joint tenancy in common at the divorce. |
|
|
Term
|
Definition
| if on the exam you encounter a situation in which the employee was driving employers car, ask was he advancing employer's business, if not employer not liable unless a permissive use statute applies. |
|
|
Term
|
Definition
| during marriage w gives sister a necklace, w divorces h, husband wants half of necklace. Since h cannot say when necklace was acquired he doesnt meet his burden of proof and loses. |
|
|
Term
| acquisition after dissolution |
|
Definition
| a party must show that the post dissolution acquisition was itslef acquired during marriage, possessed during marriage, or possessed at the end of a long marriage. |
|
|
Term
| 852 validity of transmutations |
|
Definition
| a transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. Is not effective as to 3rd parties with out notice there of or recorded. This section does not apply to gifts between the spouses of clothing, wearing apparel, or jewelry,or other tangible articles of a personal nature that is used solely or principally by the spouse and that is not substantial in value considering the circumstances of the marriage. |
|
|
Term
|
Definition
| joint tenancy is half the seperate property of each spouse, and the creditor of one spouse alone can reach only half whereas all the community property could be reached. Creditors do have standing to rebut the joint tenancy presumption and have succeeded by showing that the couple did not know the difference between joint tenancy and community property. |
|
|
Term
| there is no right of survivorship in: |
|
Definition
|
|
Term
| at divorce a tenancy in common property is treated like? |
|
Definition
|
|
Term
| exception for joint bank accounts |
|
Definition
| 5305 provides that the spouses joint tenancy bank account is presumptively community property but that the presumption can be overcome by tracing to seperate funds that were deposited into the account. |
|
|
Term
|
Definition
| if work in question requires no particular skill or discretion so that the employer had attached no special significance to the identity of the employer, and if the services of the subservant are with in the scope of the agent's employment for the employer and are performed under the agent's supervision, the employer may be liable for subservant's acts. |
|
|
Term
| rule applies only to property titled in decedent |
|
Definition
| sec. 802 applies only to property to which the decedent had title at death. This it is directed at the surviving ex spouse who cliams against the decedent's estate that an asset not divided at divorce was former community property still half owned by the surviving ex spouse. sec. 802 presumes the property was during the marriage seperate property of the decedent. |
|
|
Term
|
Definition
| agency usually arises consensually with the principal and agent agreeing that the agent shall act on the principal's behalf. In such a case, the agent has the right to bind the principal to the extent that the principal and agent have agreed. Such a right is known as authority and the principal will be bound even if the third party with whom the agent deals does not know the agent has authority or that the agent is acting as an agent. |
|
|
Term
|
Definition
| most courts use the term actual authority to denote authority. |
|
|
Term
|
Definition
| is simply the ability to effect the legal relations of the principal regardless of the right to do so. |
|
|
Term
| a principal can also be bound in certian situations where the agent does not have actual authority. In such a situation, a true agency relationship may or may not exist. There may not be a mutual agreement between the principal and the agent. |
|
Definition
| but as between the principal and the third party with whome the agent dealt, the court will act as if the agent had authority by finding that the agent had the power to bind the principal. |
|
|
Term
| when confronted with the question of whether a principal will be bound by his agent's acts, the first matter to be dtermined is whether the agent has the power to bind the principal. If the agent had actual authority, power is assumed and the principal will be bound. If no actual authority then " |
|
Definition
| it must be determined whether some other source of power is available. Power can arise from apparent authority, estoppel, or ratification. |
|
|
Term
|
Definition
| arises from consent from the principal to the agent to accomplish a task and is controlled by the agent;s reasonable beliefs. The courts have referred to two types of actual authority:implied and express. |
|
|
Term
|
Definition
| is actual authority expressly granted by the principal and the agent. |
|
|
Term
|
Definition
| often grants of authority contain extravagant phases that could be construed as giving the agent extremely broad powers, example to do any business. Courts have generally limited this language to only the business actually intended by the parties. authority to sign for a transaction for the business does not include authority to sign for stuff unrelated to the business. |
|
|
Term
|
Definition
| perhaps the clearest example of express authority is a power of attorney, which is a written instrument that states an agent's authority. |
|
|
Term
|
Definition
| any authority implied by the agent from the words or conduct between the principal and the agent. |
|
|
Term
| incidental to express authority |
|
Definition
| in most cases, the principal does not expressly grant detailed authority to the agent. Instead, the agent is given a general authority or objective- to sell the prinicipal's goods or to purchase on the principal's behalf. Such an express grant includes the implied authority to act in any way that is natural. It includes all acts reasonably necessary to accomplish the given objective. This sort of implied authority is called incidental or inferred authority. |
|
|
Term
| implied from principal's manifestations |
|
Definition
| actual authority may be impliedly conferred by the manifestations of the principal through words or conduct indicating his intention to confer it, or by otherwise causing the agent to believe that she possesses it. |
|
|
Term
|
Definition
| for many years pam has delivers her cattle to alison. Alison has sold the cattle for the best price. Upon pam's current delivery of cattle, in the absence of instructions, alison has implied authority to sell the cattle. |
|
|
Term
|
Definition
| peter's secretary andrew, without previous authorization, has purchased office supplies, and peters has paid without objection. Andrew has implied authority to continue to purchase necessary office supplies for peter. |
|
|
Term
| implied from custom or usage |
|
Definition
| unless directed otherwise, an agent also has implied authority to act in accordance with general custom or usage, provided the agent has knowledge of the custom or usage. |
|
|
Term
|
Definition
| pat appoints aron as manager of his business. Aron has implied authority to carry out all of the normal operative functions of a manager in that type of business. |
|
|
Term
| implied because of emergency |
|
Definition
| in an unforseen emergency, where the agent cannot contact the principal to obtain additional authority, the agent is impliedly deemed to have the authority to do all acts reasonably necessary to protect or preserve the property or rights of the principalI including the right to delegate authority and appoint subagents). |
|
|
Term
|
Definition
| peter ships his crops to al. Upon arrival, al notes that the crops are infected and must be treated. If al cannot reach peter, al has implied authority to order the necessary treatment on peter's behalf, and pater is liable for the cost. |
|
|
Term
|
Definition
| if your exam requires you to determine whether the agent had actual authority, dont just look for express authority, the agent also has actual authority to do anything that a reasonable person in the agent's position would presume was authorized based on the communications or conduct between the principal and agent.(implied). |
|
|
Term
| implied authority checklist |
|
Definition
| a. incidentally from express authority b. from principal's manifestations (words or conduct) c. from custom or usage d. from an emergency situation |
|
|
Term
specific examples of implied authority
-agency to sell |
|
Definition
| an agent who is given authority to sell can make warranties, receive payments, deliver goods, negotiate, conclude sale. |
|
|
Term
|
Definition
| an agent authorized to sell property on behalf of the principal is empowered to make such warranties concerning the property as are implied by law or customary in the community in connection with sales of such property. |
|
|
Term
|
Definition
| an agent is not necessarily prevented from making additional terms as long as such terms are more advantageous than or at least not inconsistent with the specified terms. |
|
|
Term
| mechanical or ministerial acts |
|
Definition
| an agent has authority to delegate when the act delegated is purely mechanical or ministerial. |
|
|
Term
|
Definition
| peter authorizes ali to inventory peter;s incoming merchandise and issue reciepts. These acts are purely mechanical and ali can delegate the task to a subagent. |
|
|
Term
| agent cannot perform act herself |
|
Definition
| when the act is such that the agent cannot lawfully perform it herself, the agent has authority to delegate the act to a subagent who can perform it. |
|
|
Term
|
Definition
| pete engages amber to auction off peter's goods, knowing that only a licensed auctioneer is permitted to conduct such a sale. If amber has no license she can delegate the authority to conduct the sale to any licensed auctioneer. |
|
|
Term
|
Definition
| the agent has authority to appoint subagents whenever it is customary or necessary to do so. |
|
|
Term
|
Definition
| if pete employs broker ali to sell his property, it is customary for brokers to appoint each other as subagents to procure buyers for listed properties. Ali has authority to appoint any other broker as her subagent. Any broker so appointed has the same authority as ali to negotiate a sale. |
|
|
Term
| subagent not party to agency agreement |
|
Definition
| even though an agent has the power to delegate her authority to another, the subagent is not a party to the principal agent agreement. The subagent yesenia generally has no right to sue the principal for the compensation that the principal agreed to pay the agent for performance of the agency services, yesenia's claim being against the agent who hired her. |
|
|
Term
examples of implied authority
-selling agent |
|
Definition
| make warranties,receive payment, deliver goods, negotiate terms and conclude sale. |
|
|
Term
examples of implied authority
-purchasing agent |
|
Definition
| make warranties, pay purchase price, accept goods and conclude purchase. |
|
|
Term
|
Definition
| mechanical and ministerial acts, agent cannot perform and custom or necessity. |
|
|
Term
|
Definition
| when the agent deceives the principal into granting her authority-for example if amber falsley represents her qualifications as a sales agent to pete, and in reliance pete authorizes amber to sell goods, amber has valid authority and any sale effected by amber is binding on pete. |
|
|
Term
| discovery of fraud by principal |
|
Definition
| if pete discovers fraud before any sale, he may revoke the authority even if the authority would otherwise be irrevocable. |
|
|
Term
| instructions-limitations on actual authority |
|
Definition
| directions given by the principal to the agent- does this create a limitation on the agent's authority or is it just mere advice to the agent? theres no answer and courts will look at principal's intent and whether he could be reached. |
|
|
Term
| termination of actual authority |
|
Definition
| an agent's actual authority can be terminated by 1. expiration of agency term or accomplishement of purpose 2. by change of circumstance or death/incapacity of party 3. by act or agreement of the parties. |
|
|
Term
| apparent (ostensible) authority |
|
Definition
| a principal will be bound by his agent's unauthorized acts if the principal has manifested to a third party, through words or conduct, that the agent has authority, and the third party reasonably relies on this manifestation. |
|
|
Term
| apparent (ostensible) authority |
|
Definition
| there is a general rule in agency law that a third party delas with an agent at his on peril, the third party has the duty of determining the scope of the agent's authority and willbear the loss if the agent acts outside that scope. |
|
|
Term
| effect of apparent authority |
|
Definition
| apparent authority gives the agent the power to bind the principal, but not the right, which can be derived only from a grant of actual authority. Thus, although a principal will be bound by anagent who acts with apparent authority, the principal usually can hold the agent liable for breach of duty. |
|
|
Term
| relationship to actual authority |
|
Definition
| while actual authority focuses on the agent's power to bind the principal by virtue of the principal's manifestations to the agent, apparent authority is based on the principal's manifestations to third parties. |
|
|
Term
|
Definition
| pete writes to amber, directing her to act as pete's agent for the sale f a ranch. Pete sends a copy of this letter to tom, a prospective purchaser. Amber has actual authority to sell the ranch to anyone, and as to tom, amber has apparent authority as well. |
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Term
| relationship to actual authority |
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Definition
| it is often said that an agent's apparent authority is usually consistent with her actual authority becuase the principal's manifestations to the third party are often similar to his manifestations to the agent. |
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Term
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Definition
| pete leaves his car with amber, directing amber to find a buyer for the car but not to accept any offers without pete's approval. Subsequently, buyer asks pete about the car, and pete tells buyer that he should work out a deal with amber. In this situation amber has no actual authority to sell, but she does have apparent and pete is bound if she sells the car to buyer. |
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Term
| note:technically apparent authority only arises in the absence of: |
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Definition
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Term
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Definition
| be sure to remember that in an apparent authority situation, you need to discuss what transpired between the principal and the third party. This differs from an actual authority situation, where you would be discusiing what transpired between the principal and agent. Ask yourself what the principal did to indicate to the third party that the agent had authority. |
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Term
requisities for apparent authority
-holding out by principal |
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Definition
| there must be some act by the principal that causes the third party to reasonably believe that the agent has authority. An agent cannot create apparent authority by her own acts. |
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Term
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Definition
| regardless of whether apparent authority is based on estoppel or the objective theory of contract, the principal will be bound only if the third party reasonably relied on the principal's manifestation of authority. If the third party knew or had reason to know that the principal was in error, no apparent authory will arise. |
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Term
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Definition
| the test for reliance is what a reasonable person under circumstances would have belived- a test that is sometimes difficult to apply. |
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Term
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Definition
| customer cali calls pete's office and asks for the price of pete's product. Pete's secretary answers the phone and supplies bad prices. If cali relies on the prices on bidding, is pete bound by the bad prices? This depends on whether a reasonable person in cali's position would have believed that pete's secreatry was authorized to supply such info. (perhaps so for a small business, not for a lare corp.). |
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Term
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Definition
| if an apparent authority situation presents itself on an exam, you must look for and discuss two requirements for apparent authority:the principal held the agent out to a third party as having authority, and the third person in fact reasonably relied on the holding out. |
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Term
apparent authority may arise in certain circumstances even though the agent has no actual authority
-imposters |
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Definition
| if the principal negligently permits an imposter to be in a position where the imposter appears to have authority to act for the principal the imposter may have apparent authority. |
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Term
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Definition
| an agent whose actual authority has been terminated will have apparent authority as to person who knew of the agent's prior authority but were not properly notified of the termination of actual authority. |
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Term
where the agent has some actual authority
-prior acts |
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Definition
| if the principal has previously allowed the agent to act beyond her authority and the principal knows that a third party is aware of this fact, the principal is bound by the agent's unauthorized act. |
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Term
| amber, a janitor in pete's employ, has no authority to employ other people. on two prior occasions, amber hired tom to do some painting in pete's building. pete paid tom with no protest. If amber hires tom to do more painting, pete will be liable because of amber's apparent authority. |
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Definition
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Term
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Definition
| when an princiapl appoints an agent to a position that customarily carries with it certian authority and a thrid person sees him in that position, even though he wasnt granted certain authorites employer would still be bound. |
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Term
| liability for false factual warranties |
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Definition
| if the warranty is a representation of an existing fact subsequently proved false, the principal may be liable under either a tort theory of misreprentation or a contract theory of breach of warranty. |
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Term
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Definition
| tort liability requires proof of scienter(knowledge of falsity or reckless disregard of truth) by either the principal or agent. |
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Term
estate of leslie
-can get inerest in husband's seperate property but how much depends |
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Definition
| a surviving spouse has the same rights as a real wife, therefore putative wife gets deceased husband seperate property but depends if their is an heir to the interest. If no children gets 100%, if 1 child, gets 50%. If 3 children, wife gets 50% and other children split 50%. |
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Term
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Definition
| rule: it owuld seem both logical and equitable to divide the property equally, awarding the putative wife the half to which she presumably contributed and giving to the legal but deserted wife the half over which the husband normally has testamentary control. |
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Term
| termination of apparent authority |
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Definition
| apparent authority is not terminated merely by giving notice to the agent. Rather, notice of the termination of apparent authority must be given to the third party to whom authority was originally manifested. |
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Term
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Definition
| p appoints a as agent to sell home to t. p revokes a's authority. This would terminate actual authority. However, until p tells t, a's apparent authority will persist and any contracts entered into between t and a on behalf of p would be binding. |
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Term
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Definition
| notice need not come to the third party directly from the principal. Motice of termination will be effective as long as it is from any reliable source. |
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Term
| expiration of stated limitation |
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Definition
| if apparent authority is originally conditioned as to time or events, an expiration of the time period (or occurence of the event) will terminate the authority. |
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Term
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Definition
| the death or incapacity of a principal does not autimatically terminate the agent's apparent authority if the third party has no notice of the death and belives the agent is acting with actual authority. |
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Term
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Definition
| estoppel is a remedy applied to prevent a principal who has misled another from profiting from his own misconduct. estoppel may be invoked whenever the principal has intentionally or carelessly caused or allowed a third party to believe that his agent has authority to do that which in fact the agent is not authorized to do so, or fails to take reasonable steps to notify the third party when he has notice of the third party's belief, and the third party detrimentally relies so that it would be unjust to allow the principal to deny the agent's authority. |
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Term
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Definition
| pete learns that amber, who has no authority to sell pete's land, is negotiating for its sale with tom on the representation that amber is pete's agent. Pete does nothing. Pete is bound to deliver the equipment to tom at the agreed price, and he is also liable to tom of breach of any warranty customary in such a sale. Pete is bound to perform as if amber was his agent, being estopped to deny such authority. |
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Term
| one of the most important tested questions on an exam is whether the agent had the power to act on behalf of the principal. In answereing such a question, you should look first to: |
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Definition
| actual authority, then apparent, and then see if the employer can be estopped. Finally look to see if the principal ratified the agent's act and if the agent's authority has been terminated or not. |
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Term
termination of actual authority
-reasonable time |
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Definition
| if no time is specified by the parties, a reasonable time is implied and the authority terminates at the end of a reasonable period. example- pam authorizes ceslie to cell car- 10 years elapses, the agency would be deemed terminated. |
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Term
| once the agent fullfills his purpose: |
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Definition
| is terminated, but note agents must have notice that the purpose was fullfilled. |
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Term
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Definition
| if the house burnt down the agency is terminated. |
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Term
| change of circumstances affecting value |
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Definition
| similarly if there is a basic and unforseen change of circumstances that substantially affects the value of the subject matter, or otherwise makes it apparent that the principal would not wich the agent to sell authority is terminated. Example: pam authorizes amber to sell land for 10,000. Then minerals are discovered tripling the value, Amber's authority to sell for original amount is terminated. |
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Term
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Definition
| war, bankruptcy, changes of law and ambezzlement or disloyalty of the agent. |
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Term
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Definition
| if prinicpal loses the capacity to do an act, then the agent's actual authority to do the same act is terminated. But has to be notified. |
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Term
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Definition
| an agent's authority is not necessarily terminated if agent becomes mentally incapacitated. Only if she cannot do the particular act authorized. |
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Term
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Definition
| if on an exam you have to determine whether an agent's authority to act for a principal is terminated due to incapacity, ask yourself if the agent can still perform the act authorized by the principal even though she is incapacitated. If so the agent's authority will not terminate. |
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Term
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Definition
| agency powers may be held to be irrevocable by the principal because the agency is really for the benefit of the agent. Such powers do not terminate on the death or incapacity of the principal or agent, and their exercise therefore binds the principal's estate. |
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Term
| by act or agreement of the parties |
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Definition
| because the agency is consensual, it can terminate if either or both parties agree or communicate an intention that the authority shall end. |
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Term
| revocation of authority by principal |
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Definition
| principal can terminate egency at any time |
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Term
| principal may terminate agent's contract at any time but may be held |
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Definition
| liable for breach of contract because the principal had the power but not the right to revoke authority. |
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Term
| termination when power is given as security for the benefits of the agent |
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Definition
| cannot terminate when principal dies because it is in agent's benefit. |
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Term
| termination of apparent authority |
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Definition
| continues despite the termination of actial authority until it is no longer reasonable for the third party with whom the agent deals to believe that the agent continues to act with actual authority. |
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Term
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Definition
| in cases where the agent;s apparent authority arose from representations by the principal to the public at large, notice by advertisement or similar means is generally sufficient to terminate the agent's apparent authority. |
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Term
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Definition
| if thw writing granting the agent authority has been recorded, the principal must record a revocation of the authority. |
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Term
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Definition
| if a written authorization indicates specific conditions upon which the agent;s authority will terminate (such as a date) and the third party learns of this, that is all that is necessary. |
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Term
| only the principal may ratify and the act being ratified must be one that can be performed by an agent (illegal acts cannot be ratified). |
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Definition
| The principal must have all the facts at the time of consent otherwise its not a ratification. |
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Term
| you can only ratify the act if: |
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Definition
| I was alive(existed) and had capacity |
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Term
| a ratification is the yes by a person of a prior act supposedly done on his behlaf, but was not authorized. |
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Definition
| the essence of ratification is that the prior unauthorized act is treated as if it had been authorized by the principal. |
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Term
| agreement treated as offer |
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Definition
| the third party's agreement with the agent is deemed to be no more than an offer to the principal. |
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Term
| no ratification- no contract |
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Definition
| it follows that if the principal never ratifies there is no contract between the third party, and the agent can be liable. |
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Term
| ratification -acceptance of offer |
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Definition
| if the principal ratifies however he is deemed to have accepted the third party's offer and becomes bound by the contract. |
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Term
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Definition
| ratification may establish both the agent's authority and the agency relationship. Thus after ratification the principal becomes liable for the agent's act and the agent is relieved of liability to the principal. |
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Term
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Definition
| the traditional rule is that once an agent's act is ratified, it is treated as though it had been authorized from the outset. All rights and liabilities are therefore said to relate back to the date of the original unauthorized act. In other words, ratification is retroactive. |
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Term
| when ratification is not effective |
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Definition
| ratification is not effective if it benefits a person who engaged in misrepresentation or other conduct that would make a contract voidable, the principal ratified the transaction to avoid a loss and the resulting benefit is in favor of the agent( for example if the agent's unauthorized act forces the principal to take action to avoid a loss, the agent is not exonerated and the principal's act in avoiding the loss does not operate as a ratification of the agent's act or it would prejudice innocent persons who acquired rights in the transaction prior to ratification. |
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Term
| act on principal's behalf |
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Definition
| the act ratified by the principal must have been undertaken by a person who acted or purported to act on the principal's behalf. Thus ratification may create a relationship of agency where none existed before. when the actor is not an agent and does not purport to be one, neither agency law nor ratifiaction applies. |
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Term
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Definition
| amber poses as the owner of land and sells it to tom. Later pam, the real owner, discovers that a,ber has done and decides to affirm the sale to tom. No ratification results and tom is not bound to purchase from pam because amber was not purpoting to act as pam's agent. |
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Term
| undisclosed principal cannot: |
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Definition
| ratify, and has no power to accept |
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Term
| partially disclosed principals |
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Definition
| if the agent discloses the fact that she is acting as an agent for some principal but does not disclose the identity of the principal, the restatement second provides that only the person whom the agent intended to be the principal can ratify. |
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Term
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Definition
| only acts that can be performed by agents may be ratified. An act cannot be ratified if it is currently illegal or contrary to public policy. |
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Term
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Definition
| there can be no effective ratification unless the principal has actual knowledge of all material facts at the time of ratification. the principal can revoke only if there is no detrimental reliance from third party. |
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Term
| principal may assume risk of lack of knowledge |
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Definition
| if the principal's ignorance of the facts arises from his own failure to investigate, under circumstances in which a reasonable person would have made an investigation, he is held to assume the risk of his lack of knowledge. The ratification is effective despite the fact that the principal did not know certain material facts. |
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Term
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Definition
| a principal can ratify an act if the principal existed at the time of the act and had capacity at the time of ratification. Thus a principal who was not in existence at the time of the agent's act cannot ratify. |
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Term
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Definition
| when determining whether the principal has capacity to ratify, remember that capacity is determined at the time of ratification- the principal need not have had capacity to ratify at the time of the act. Thus, the principal can ratify an act even if there is no capacity until after the act. |
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Term
| partial incapacity-contracts voidable |
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Definition
| if the principal's incapacity makes his contracts voidable, he may ratify after the incapacity is removed. for ex. amber buys a car for 17 year old tom. When tom becomes 18 he can ratify and will be bound. |
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Term
| principal must manifest intention to be bound |
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Definition
| ratification requires some words or condcut by the principal that manifests his intention to be bound by the agent's act. Statements or conduct by the agent or some other third person will not suffice. |
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Term
| ratification need not be communicated |
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Definition
| it is not necessary that the principal notify or communcate affirmation to the agent. Just accepting the benefits is good enough. |
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Term
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Definition
| notifying agent or third aprty is sufficent for express ratifiaction. |
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Term
| implied affirmation- ratification be conduct |
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Definition
| if no words, that if conduct by the principal that sufficiently evidences the intent to affirm the transaction. |
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Term
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Definition
| voluntary accpetance of benefits is a good ratification |
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Term
| exception- involuntary retention |
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Definition
| if retention is involuntary-there is no ratification. For example amber buys fertilizer and spreads it on pam's land. Pam knows nothing of this. This is not a ratification. |
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Term
| failing to act when duty to do so |
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Definition
| without authority amber places an order wit tom, pam learns of this but does nothing to stop it, he ratifies. |
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Term
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Definition
| if the issue in an exam question is whether the principal has indicated an intention to be bound by his agent's unauthorized act, remember that the principal does not have to expressly affirm the agent's act (by notifying the agent or third party that he wants to accept the deal) to be bound by it. Rather the principal often impliedly affirms the act. Therefore, be sure to check the facts to see if the principal retained the benefits to the act, brought suit to maintain a defense, or failed to repudiate the act when he had duty to do so, the principal has ratified the agent's act. |
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Term
| entire transaction must be ratifed |
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Definition
| a contract or other single transaction must be ratified in its entirety to have an effective ratification. The principal cannot just ratify the good parts. |
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Term
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Definition
| the death or incapacity of the third party will also terminate the principal's power to ratify. |
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Term
change of circumstance
-if principal ratifies and after a material change occurs that would make it inequitable to subject the third party to liability, the third party can avoid the transaction despite ratification. |
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Definition
| for example- house burns down a day after you accepted offer. Ratification of contract will not bind buyer. |
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Term
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Definition
| a change of circumstance occuring after ratification by the principal will not be sufficient to avoid ratification. |
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Term
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Definition
| a princiapal's ratification will be ineffective if the principal does not ratify the entire transaction, the third party revokes the offer before the principal ratifies, or the circumstances change before ratification so that it would be inequitable to hold third party liable. |
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Term
| estoppel to deny ratification |
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Definition
| a principal is estopped from denying a ratification if the ratification induces a third party to detrimentally change his position. |
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Term
| notice is a concept that includes: |
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Definition
| notification and knowledge |
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Term
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Definition
| involves an act intended to bring to the principal knowledge that affects her legal rights. |
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Term
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Definition
| 1. if the agent that had apparent or actual authority has gotten notified than the principal should be considered to have also have recieved 2. notification will not become ineffective because of the passage of time. |
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Term
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Definition
| is subjective. 1. An agent's knowledge will be discussed with the principal only if it concerns the subject matter of the agency and is within the scope of the agent's actual authority. 2. becuse knowledge is subjective, it may become ineffective because of the passage of time. |
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Term
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Definition
| a person has notice of a fact if he knows of it, has reason to know it, should know of it to fullfill a duty owed to another person or has been given notification of it. |
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Term
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Definition
| is subjective and involves an awareness |
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Term
| an agent has a duty to inform the principal of all matters in connection with the agency that the principal would desire to know. If the agent breaches this duty, the principal will have to accept the consequences of the agent's breach not the innocent third party. |
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Definition
| because the principal chose this agent. The principal is deemed to know all that the agent should know. |
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Term
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Definition
| the principa`l is not charged with knowledge of facts learned by the agent before or after his employment, must be during the period of agency. |
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Term
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Definition
| it is immaterial when the agent acquired the knowledge. The issue is whether he had the knowledge in mind when it became relevant in his work in mind. |
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Term
| interest must be substantially adverse |
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Definition
| many courts have held that the agent's interest must be substantially adverse to the principal 's interest in order to prevent imputation of knowledge. |
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Term
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Definition
| despit the fact that the agent is acting adversly to the principal a principal can be liable if 1. knowledge is necessary to protect the rights of a third party who dealt with the principal in good faith and without knowledge of the agents adversity 2. the principal has ratified the agents actions 3. the principal knowingly retained the benefits from the agents actions. |
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Term
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Definition
| 1. subjective awareness of a particular fact 2.(authority required for imputation) principal will be charged with agent's knowledge only if agent had actual authority in the transaction to affect principal's rights 3. may become ineffective because of the passage of time 4. (effect of adverse agent) knowledge not imputed to principal because agent was acting outside the scope of authority. |
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Term
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Definition
| 1. an act calculated to give information to another that affects the legal relationship between the parties. 2. (authority required for imputation) principal will be charged with notification given to agent if agent had any actual or apparent authority in the transaction to recieve notification. 3. continues indefinetly and does not become ineffective because of passage of time. 4. (effect of adverse agent) notification still imputed to principal unless third party knew agent was acting adversely. |
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Term
| the agent can be held liable in a number of circumstances |
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Definition
| if the agent lacked authority, even if the agent acted with authority sometimes can be liable, if the principal is disclosed the agent can be held liable if her name appears on the contract as a party and not merely as an agent, if the principal is unidentified or undisclosed. |
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Term
| the third party generally can be held liable only by the principal. |
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Definition
| if agent fraudulently conceals the principal's identity the principal may not be able to enforce the contract. |
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Term
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Definition
| if the agent purports to act on behalf of a principal when entering into a contract with a third party but is in fact acting without authority or in excess of her authority (by making unauthorized representations), the principal generally cannot be held liable to the third party absent some other source of agency power. In such cases, the agent alone is liable. Depending on the situation, the agent's liability may be based on the breach of warranty, on the contract, or both. |
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Term
| agent's liability for breach of warranty-disclosed or unidentified principal |
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Definition
| An agent who purports to enter into a contract with a third party on behalf of a principal impliedly warrants that she has authority to bind her principal. If the agent was not authorized or exceeded her authority, so that the principal is not bound, the agent may be liable to the third party for breach of the warranty of authority. |
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Term
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Definition
| obviously, there can be no breach of warranty liability in an undisclosed principal case. In that case, the agent does not warrant that she has any authority to act for another (in fact the third party doesnt even know that there is a principal). Thus, you should consider the warranty theory only in a disclosed or unidentified situation. |
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Term
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Definition
| it is essential that the third party rely on the warranty, example an agent is not liable if the third party knows that the agent was mistaken as to her authority. |
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Term
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Definition
| under this warranty theory of liability, the agent is liable even though she belived in good faith that she was authorized. Moreover, if the agent intentionally misrepresents that she has the requisite authority, she may also be held liable in tort for deceit. |
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Term
| No warranty of performance |
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Definition
| The agent's implied warranty of authority, does not include a warranty that the principal will perform the contract, or even that he is capable of performing it (ex:has money to perform). |
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Term
| distinguish- warranty of competence |
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Definition
| The implied warranty of authority,however, is deemed to include the agent's warranty that the principal is not legally incompetent. (if the principal were incompetent, he would not have the capacity to appoint an agent or grant authority to the agent in the first place).If an agent makes a contract on behalf of a non=existent or incapacitated principal, the agent becomes a party to the contract. |
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Term
| contract liability to third parties |
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Definition
| did the agent have authority to bind the principal- yes-- was the principal disclosed, unidentified or undisclosed---- disclosed meaning principal is liable and agent is not unless she agreed to be personally bound. If undisclosed or unidentified--- than both the principal and agent are liable on the contract, but thrid party is entitled to one recovery. Note an undisclosed principal cannot ratify the contract. |
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Term
| contract liability to third parties |
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Definition
| did the agent have authority to bind the principal---if no than did the principal ratify the contract---if no then principal is not liable; agent liable for breach of warranty if she purportedly acted on behalf of the principal; agent liable on the contract if the principal was unidentified or undisclosed. |
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Term
| agent's liability on contract- undisclosed or unidentified principal |
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Definition
| distinct from an agent's liability for breach of warranty is the agent's liability on the contract itself. An agent who without authority enters into a contract with a third party is liable to the third party on the contract if the principal is undisclosed or unidentified. If the principal is undisclosed the agent is the only party on the contract (she is the promiser) and therefore she is liable on the contract. |
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Term
| distinguish- disclosed principal |
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Definition
| however, if an agent purports to act on behalf of a disclosed principal when contracting with a third party, and the agent in fact acts without authority or in excess of her authority, the agent is not liable on the contract. The agent was not intended to be personally liable; the agent purported to be acting on the principal's behalf, and the parties intent was that the principal be bound. Recall, however, that the agent can be liable for breach of warranty. |
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Term
|
Definition
| on your exam, if you see an agent contracting without authority or in excess of authority, be sure to consider both possible ways for the agent to be liable to the third party: breach of warranty and on the contract. Remember that i the principal's existence has not been disclosed, the agent can only be liable on the contract. If the principal's existence and identity have been disclosed, the agent can be liable only for breach of warranty. If the principal's existence has been disclosed but not his identity, the agent canbe liable both for breach of warranty and on the contract. |
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Term
| agent's liability to third part when acting without authority |
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Definition
1.disclosed principal situation----agent liable for breach of warranty not on contract.
2. unidentified principal situation--- agent liable for breach of warranty and on contract.
3. undisclosed principal situation---agent not liable for breach of warranty but liable on contract. |
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Term
| principal's liability-when third party has performed |
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Definition
| as noted, a principal is generally not liable on a contract entered into by an agent acting without authority or in excess of authority. However, if the agent exceeds her authority, but the third party renders full or part performance under the contract, the third party may be entitled to sue the principal in quasi contract for the value of the benefits conferred on the principal, even though the third party cannot enforce the contract itself against the principal absent the principal's reatification. |
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Term
|
Definition
| your exam will likely have an agent enter into a contract with a third party for a principal and ask you to determine if the agent and/or principal is liable to the third party and to whom is the third party liable.In this situation, you will have to be prepared to discuss the type of principal (disclosed,unidentified, or undisclosed) involved in the transaction, because the agent's liability depends on the type of principal. You also should consider the intent of the parties when determining their liability, because the parties intent controls. |
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Term
| contract in name of principal (disclosed principal cases) |
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Definition
| If the agent negotiates a contract in the name of the principal, the agent is not a party to the contract unless the agent and third party agree otherwise. Thus she is not liable on the contract and is not entitled to enforce it aginst any other party or to otherwise assert any rights under it. The other party to the contract is liable directly to the principal and vice versa. |
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Term
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Definition
| amber executes a contract that makes clear that amber is executing the contract solely on pam's behalf. If amber acts are authorized, she is not liable for pam's nonperformance of the contract, nor is she entitled to assert any rights under the contract. |
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Term
| need not specify principal |
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Definition
| if the third person knows or should know the identity of the principal, the principal is disclosed even though his name does not appear on the contract or the agent does not specifically state that she is acting for a principal. (the agent is not party to this contract). |
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Term
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Definition
| tom knows that pam is amber's employer and the owner of a horse that amber is offering to sell. If tom buys the horse from amber, he cannot hold amber as a party to the sale. |
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Term
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Definition
| an exception to the genral rule that an aget is notliable on a contract that he enters into in the name of the principal occurs when the parties intend the agent to be personally liable; however, the parol evidence rule may prohibit the use of extrinsic evidence to establish intent if a written contract is involved. |
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Term
| exception-ambiguous contracts |
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Definition
| extinsic evidence is admissable when contract terms are ambiguous. To determine if a contract is ambiguous, courts look at the entire contract, but often start by examining the form of the agent's signature. Generally, the agent is personally liable when his signature does not indicate that he signed in a representative capacity. If the signature clearly indicates thathe signed only in a representative capacity, the principal alone is liable. |
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Term
contract in name of agent only(undisclosed and unidentified principal cases)
-undisclosed principal |
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Definition
| In undisclosed principal cases, both the fact of agency and the principal's identity are undisclosed, and the agent is generally liable as a party to the contract. However, the agent may have a right to indemnifcation from the principal if an agency agreement exists. If no agency agreement exists (ex:gratuitous agent), but the principal accepted the benefits of the contract, the agent may recover from the principal in quasi contract. |
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Term
| liability of principal to third party |
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Definition
| Once the principal's identity is made known, he may also be held liable on the contract if the agent's acts were authorized. Thus, the third party may hold either the principal or agent liable. The modern view is that the parol evidence rule does not apply to prohibit the admission of extrinsic evidence to show that one signed as an agent. The statute of frauds however, does apply in that if the contract the agent is enteringinto must be writing, so must the agent's authority. |
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Term
| Requirement of election by third party |
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Definition
| although the third party has a right against either the principal or agent, he can recover from only one of them. The modern rule is that the third party can file suit against both, but upon objection of either party, the third party must elect prior to judgement which party he wishes tohold liable. The minority view holds that suit filed against one acts as an election to release the other party from liability. |
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Term
| principal still undisclosed |
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Definition
| if the third party obtains a judgement against the agent withotu knowledge of the principal's indentity, and the judgement is unsatisfied, the third party can later sue the principal when the principal's identity is discovered. |
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Term
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Definition
| either the principal or agent can enforce the contract against the third party, but the principal is entitled to all benefits of the contract )as if he were the assignee to the agent's rights). However, the 3rd party has a right to revoke the contract if the agent fraudulently represented that she was contracting for herself or if enforcement by the principal would impose an added or different burden of performance on the 3rd party. Note that fraud is involved only if the principal hides his identity because the third party would not deal with him otherwise. |
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Term
| exception- powers given for benefit of agent |
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Definition
| if the agent's powers are irrevocable because she has some interest in the subject mater the agent rather than the principal is entitled to any recovery from the third party. |
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Term
| agent's personal performance |
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Definition
| the third party may refuse a tender of performance from the principal and can insist upon personal performance by the agent if the duties under the law of contracts are nondelegable ( example- credit of personal service contracts) |
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Term
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Definition
| in certain cases, the third party knows that the agent is acting as an agent but does not know the identity of the principal. If the agent has signed or described herself as an agent of another, the agent is a party to the contract unless otherwise agreed. Extrinsic evidence is admissible to show whether the parties intended the agent to be personally bound. |
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Term
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Definition
| is admissable only if there is ambiguity. Extrinsic evidence includes the acts, declarations, and relationships of the parties and the circumstances surrounding the execution of the contract. |
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Term
exam tip:before you determine that an agent contracting on behalf of a disclosed principal is notliable on the contract, you must frist examine the intent of the parties. You can examine the intent of the parties by looking at the contract and the surrounding circumstances (extrinsic evidence). But remember that if the contract is in writing, the parol evidence rulemay prohibit the admission of extrinsic evidence of intent:
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Definition
| in which you must solely look to the contract. But note that if the contract is ambiguous (form of agent's signature not clear) you may look to extrinsic evidence in determining the parties intent. |
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Term
| exam tip: in determining who is liable to the third party on a contract entered into by an agent for an undisclosed principal, remember that the third party may sue both the principal and agent, but the third party is entitled to only one recovery: |
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Definition
| (the third party may not satisfy a judgement against both the principal and the agent). |
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Term
| exam tip: watch out for a situation where a 3rd party refuses to perform on a contract entered into by an agent for an undisclosed principal. Although the general rule is that the third party is liable to the principal on the contract -because the rights and benefits of the contract flow from the agent to the principal-there are exceptions- |
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Definition
| to the rule. Remember that the 3rd party does not have to perform if the agent fraudulently concealed the principal's identity, the performance to the principal would impose a great burden on the third party or the agent's authority is coupled with an interest. If any these apply the 3rd party is not liable to the principal. |
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Term
| agent acting with authority |
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Definition
| 1. disclosed- the third party should know principal's identity. Principal is on contract only unless agreed that agent is also. Principal can enforce contract. Agent has no contracts rights. Parole evidence is not admissable unless there is ambiguity. |
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Term
| agent activity with authority |
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Definition
| 1. undisclosed- third party does not know that there is an agency nor principal's identity. Principal and agent are on contract. Principal can compel third party's performance unless agent fraudulently cocnealed principal's identity, or performance would impose a greater burden on 3rd party, or agent's authority is coupled with an interest(only agent can compel performance). Agent has contract rights of indemnification or relief based on quasi contract. Parole evidence is admissable to show agent was acting on behalf of principal. |
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Term
| agent acting with authority |
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Definition
| 1. unidentified- third party has notice that agent is acting as agent but does not know principal's 3rd indentity. Principal and agent are on contract unless agent and 3rd party agree agent is not party. Principal can enfroce terms. Agent can enforce terms. Parole evidence is admissable to show parties intented agent to be bound or not. |
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Term
| an agency is generally defined as the relationship that arises when one person, the principal, manifests an intention- |
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Definition
| that another person, the agent, shall act on the principal's behalf. The manifestations can occur by express or implied agreement between the principal and the agent, or after the fact by the principal's ratification of the agent's act. |
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Term
| even if there is no agreement or ratification, an agency can arise from the principal's conduct toward third ---- that causes them to believe that the principal has appointed someone to be his agent(apparent or ostensible). |
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Definition
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Term
| there are a few other requisites for the creation of an agency: |
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Definition
| the principal must have the capacity to contract(the agent need not have such capacity), and although no consideration is required and generally no writing is required (except where the statute of frauds or an equal dignities rule applies), the agency must be formed for a legal purpose. |
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Term
| scope and purpose of agency |
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Definition
| agency is a device that allows one person to appoint another person to act for him in such a way as to effect legal acts and liabilities. Regardless of the setting, the law of agency concerns the rights and liabilites created when one person acts for another. |
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Term
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Definition
| agency is defined as the fiduciary relationship that results from the mutual manifestation of consent that one person (the agent), shall act on behalf of and subject to the control of another person (the principal). It does not matter what the principal truly intended, rather the agency relationship depends on what the agent believed the principal intended. Thus an agency relationship can arise even if the principal subjectively intended no relationship. |
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Term
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Definition
| a principal is disclosed if the third party with whom the agent is transacting business knows that the agent is acting for a principal and knows the principal's identity. |
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Term
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Definition
| a principal is unidentified if the third party with whom the agent is transacting business knows that the agent is acting for a principal but does not know the principal's identity. |
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Term
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Definition
| a principal is undisclosed if the third party with whom the agent is transacting business does not know that the agent is acting for a principal. |
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Term
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Definition
| is an agent authorized to conduct services of transactions involving a continuity of service. Example:pam is the owner of a grocery store. Pam hires amber to manage the grocery store. Amber will hire employees, order produce and other merchandise, etc. Amber is a general agent of pam. |
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Term
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Definition
| a special agent is an agent authorized to conduct only a sinlge transaction or a series of transactions not involving a continuity of service. Example: pam is a collector of art. A vase that pam wanted ofr years has been put up for auction. Pam and Amber agree that Amber will attend the auction and purchase the vase. Amber is a special agent for Pam. |
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Term
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Definition
| sometimes an agent will appoint another to perform functions undertaken by the agent for the principal. The appointee is a subagent if the appointing agent acted with the authority of the principal in making the appointment.The apointment of a subagent involves the delegation of power by the appointing agent; thus, the subagent has two principals-the appointing agent and the principal. The appointing agent is primarily liable for the acts of the subagent, and the principal is secondary liable. But note:if a subagent is not authoried to appoint a subagent, but neverless appoints a person to perfomr a function for the principal, the appointee is not a subagent, but rather the agent's agent, and the principal is not liable for the acts of the appointee. |
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Term
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Definition
| whenever an exam question presents an agent who appoints another to do his work, be sure to check the facts to see if the principal expressly or impliedly authorized the agent to do so. Remember that an agent's appointee is not a subagent of the principal (and the principal is not liable for the appointee) unless the principal gave the agent the authority to appoint a subagent. |
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Term
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Definition
| principal hires an accounting firm to prepare its tax returns. The firm hires a CPA to prepare the forms. The firm is the agent and the CPA is the subagent. |
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Term
| employer employee relationship |
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Definition
| the key to determining whether a person is an employee or independent contractor is whether the principal has control over the person's performance. |
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Term
| consent- agency relationships arise by prior agreement between the principal and the agent because they are consensual in nature. However, consent also can occur -- |
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Definition
| after the fact by ratification, and estoppel can serve as a substitute for consent. (example:an apparent or ostensible agancy). |
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Term
| respondiat superior has torts and agency has |
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Definition
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Term
| a principal has to have:for an agency relationship to exist: |
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Definition
1. capacity-to contract (an adult, not insane or enebriated).Agent doesnt have to have this but principal does.
2. assent/consent-both principal and agent must agree, is a fidicuary relation and the agent's consent seals the deal.
3. control-is ambiguous, agent is acting on behalf of principal,principal can say general things, principal has control over when to fire him. Principal is in charge.
4. action-agent cannot act on his own behalf |
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Term
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Definition
| an oral authorization is sufficient for any purpose, except that and authority to enter a contract required by law to be in writing can only be given by an instrument in writing. |
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Term
| the key agency issue is whether there is: |
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Definition
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Term
| threshold question:did principal relation exist? |
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Definition
| p/a (CACA) + authority (what was the agent's scope of authority) = contract binding to principal |
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Term
| in general the agency relationship is consensual but not necessarily contractual;therefore, not every contractual formality --- |
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Definition
| is required for its creation. |
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Term
| consent- agency relationships ordinarily arses by prior agreemeent between the principal and the agent because they are consensual in nature. However, consent also can occur after the fact by ratification, and estoppel can serve as a substitute ---- |
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Definition
| for consent(an apparent or ostensible case). |
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Term
| agency by agreement- an agency by agreement must be based on some indication by the principal to the agent that the principal consents to have the agent act on her behalf. A similar manifestation of consent by the agent to act for the --- |
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Definition
| principal must be indicated as well. |
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Term
| express vs. implied consent |
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Definition
| the agency agreement may be express or it may be implied from the conduct of the parties (if farmer habitually leaves her crops with produce broker she has impliedly appointed produce broker as her agent for the purpose of selling the crops at the market price). |
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Term
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Definition
| an agency also may be created by ratification. This results whenever the principal accepts the benefits or otherwise affirms the conduct of one purporting to act on the principal's behalf, even though there is no agency agreement and no authority was given for the act. Ratification retroactively creates the effects of actual authority. |
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Term
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Definition
| ratification is deemed to supply the consent required for the principal agent relationship. Thus to find such consent or affirmance of the agency,there must be some objective evidence that the principal knew of the act in question. The principal will not be bound if the ratification is made without knowledge of the material facts, although knowledge may be inferred from the acts. Ratification does not apply to future acts. |
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Term
| express vs. implied ratification |
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Definition
| of course, an express approval of the transaction is the clearest evidence of consent. However, consent will also be found whenever the principal accepts the benefits of the transaction (by electing to take title to property purchased by an unauthorized agent), or otherwise obtains an advantage from the transaction with knowledge of it. |
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Term
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Definition
| a principal cannot ratify the beneficial aspects of an agent's conduct while refusing to affirm the rest. If she ratifies at all, she ratifies the entire transaction. In other words, ratification is an all or nothing proposition. |
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Term
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Definition
| ratification may also expose the principal to tort liability for the agent's misrepresentations. |
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Term
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Definition
| if the principal causes a thrid person to believe another to be her agent, and the third person so relies in dealing with the supposed agent, at least as between the principal and the third person, the court will act as if an agency existed. To recover against the principal, the third person's reliance must be reasonable and must rely on acts of the principal and not those of the agent alone. |
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Term
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Definition
| an ostensible agency (also called agency by estoppel) arises if the principal 1.intentionally or carelessly causes a third person to believe that the agent has authority or 2. upon notice, fails to take reasonable steps to notify the third person that the agent does not have authority, and 3. the third person makes a detrimental change in position (expends money or labor or incurs a loss) based on reliance on the agent's purported authority. |
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Term
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Definition
| note the distinguishing factor differentiating apparent agency from ostensible agency. In the apparent agency situation, the principal manifests that the agent has authority. In the ostensible agency situation, the principal makes no such manifestation, but instead fails to use reasonable care in preventing a third party from relying on an agent's erroneous assertion of power or fails to notify the third person that the agent has no authority. |
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Term
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Definition
| a principal must have the capacity to individually perform the act that he delegates to the agent. This usually requires contractual capacity. On the other hand, any person may ordinarily act as an agent provided she has the ability to perform the actions. Minimal mental capacity is sufficient;contractual capacity is not required. |
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Term
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Definition
| because a minor generally does not have the capacity to contract, she cannot validly appoint as her agent, except to the limited extent of contracting for her necessities of life. However, a minor can be appointed as another's agent. |
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Term
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Definition
| similarly, a person who is legally incompetent does not have the capacity to contract and cannot appoint an agent. However, it is possible that if the incompetent person is in fact capable of performing the necessary agency functions, he might be appointed as the agent of another. |
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Term
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Definition
| notice the different capacity requirements: a principal must have contractual capacity but an agent need not. Remember that whenever an exam question involves a minor or incompetent person, that person generally may be an agent but cannot be a principal. |
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Term
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Definition
| no consideration is necessary for either party to create an agency relationship. Thus a person may act as an agent without receiving any compensation or other benefit. |
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Term
| effect of not having required writing |
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Definition
| if the agent's authority is required to be evidenced by a writing, but it is not, any contract executed by the agent is unenforceable against the principal, even though the contract itself is in writing. |
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Term
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Definition
| written authority usually is not required if the agent acts mechanically, example if the agent does not have discretionary authority to enter into a contract, but ismerely authorized tosign the principal's name to a contract already made. Another example, pam negotiates a contract with x, but leaves town before the agreement has been drawn up. If pam authorizes amber to sign pam's name to the agreement, the authority is valid even though oral. |
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Term
| public policy requires principal to perform |
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Definition
| a principal cannot delegate to an agent acts that public policy requires the principal to perform personally (example-voting in a public election). |
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Term
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Definition
| similarly, performance in a personal services contract with a third person cannot be delegated to an agent (example-singer cannot delegate her duty to sing a concert to another singer). |
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Term
| if your exam question involves the breach of a duty by an agent or principal, you should consider the following: |
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Definition
| duties of agent/rights of principal: a compensated agent owes the principal the duty to perform with reasonable care. If the agent does not so perform, he may be held liable for breach of duty in both contrac and tort negligence. |
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Term
| duties of agent/rights of principal |
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Definition
| an uncompensated agent generally does not have a duty to perform, but once he preforms, he may be subject to tort liability if he improperly performs. Additionally, every agent is a fiduciary, whether or not he is compensated. As such he has a duty to 1. notify the principal of all matters that come to his knowledge affecting the subject of the agency, and 2. be loyal to the principal, which includes avoiding conflicts of interest. If an agent breaches his duties, the principal may among other things seek damages, recover the agent's ill gotten profits, and withold the agent's compensation. |
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Term
| duties of principal/rights of agent |
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Definition
| a principal also owes duties to her agent. Generally, the principal must deal with the agent fairly and in good faith and act in accordance with the terms of the agency contract. A principal has a duty of compensation to the agent and reimbursement. The principal must cooperate with agent and not prevent the agent from doing her duties. If the principal breaches these duties, the agent may seek indemnification from the principal, put a lien on his property, etc. however, the agent cannot obtain specific performance. |
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Term
agent's duties to principal
-contractual duties and duties implied by law |
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Definition
| because the agency relationship is consensual, the agent has the duty to abide by the express and implied terms stated in the agency agreement. |
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Term
| the following duties are implied by law from the agency relationship and exist whether or not the principal is known or disclosed to any third party: |
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Definition
| duty to perform-an agent has a duty to perform-which includes the duty to perform with reasonable care-and to refrain from conduct that will cause damage to the principal. An agent must act within the scope of her actual authority and has the duty to obey her principal's lawful and reasonable instructions. However, there is no duty to abide by instructions that will subject the agent to civil, criminal, or administrative liability. |
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Term
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Definition
| agent has the duty of care, competence and diligecne excercised by agents in similar circumstances to be carried out. |
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Term
| effect of careless performance or non performance- |
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Definition
| if the agent fails to perform all duties assigned to him, he is generally liable only for breach of the agency contract. However, is he performs the assigned duties, but in a careless or imperfect manner, and thereby causes loss to the principal, he may be liable for negligence (tort) as well as for breach of contract. Example:an insurance agent who fails to obtain coverage ordered by the principal and places orders for wrong insurance is liable for negligence as well as breach of the agency contract. |
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Term
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Definition
| a gratuitous or uncompensated agent owes to the principal the same duties of a compensated agent. |
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Term
| exception-detrimental reliance |
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Definition
| even though a gratuitous agent generally has no contractual duty to perform, if the principal detrimentally relies on a gratuitous agent's promise to perform, the principal may recover contract damages sustained by the agent's refusal to perform. Example amber suppose to sell stocks at 50 per share, doesnt. pam can sue her to recover contract damages. |
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Term
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Definition
| on an exam pay attention to the status of the agent. Remember that a paid agent can be subject to both contract and tort liability, whereas an unpaid agent is generally subject only to tort liability unless the principal can show that he detrimentally relied on the agent's promise. |
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Term
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Definition
| in addition to the basic duty to perform the contract and render services with reasonable care, he owes the principal a fiduciary duty as well of faithful service. |
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Term
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Definition
| what the agent's knows the principal knows, notice to the agent is imputed to the principal. |
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Term
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Definition
| an agent must be loyal on all matters connected with the agency. |
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Term
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Definition
| agent cannot unless agency has ended and action is not wrongful. |
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Term
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Definition
| after termination of his employment he can compete with principal and work for competitor, unless he has agreed otherwise. |
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Term
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Definition
| a former agent cannot use or disclose trade secrets or other confidential information obtained during his employment. |
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Term
| limitation-dishonest principal |
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Definition
| note, however, that the duty of loyalty does not obligate an agent to shield a dishonest principal. |
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Term
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Definition
| the agent's fiduciary duty likewise dictates that he may not take a position adverse to that of his principal without the principal's consent.The principal's consent does not relieve the agent of his loyalty though. |
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Term
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Definition
| an agent does not breach the duty of loyalty if he acts on behalf of an adverse party in a ministerial capacity that does not require the exercise of judgement, descretion, or skill. He does breach the duty if he has an economic interest in a party with whom the principal deals or if the principal is angaged in a transaction with a party in whom the agent has an interest (relative or close friend of the agent). |
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Term
| acquiring material benefits |
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Definition
| cannot, it is all property of the principal, because he is working on his behlaf and for his benefit not the other way around unless the principal gives consent. |
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Term
| personal purchase by sales agent |
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Definition
| an agent authorized to sell land cannot buy it himself, because he might hav obtained a better price from someone else. |
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Term
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Definition
| on discovering the agent's interest, the principal can rovoke the sale and recover the property. If the property has been resold by the agent, the principal canhold the agent liable for its value or collect and profits realized by the agent from the sale, plus damages for any harm. |
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Term
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Definition
| an agent acting for more than one principal, the buyer and seller is conflicting interest and fraud can happen. Therefore only if both parties are fully informed and consent to it can the agent collect commissions and make transaction valid. |
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Term
duties owed by subagents
-authorized subagent |
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Definition
| if the principal has authorized the agent to hire a subagent, the sub agent owes the same duties to the principal as the agent. The agent is responsible to the principal for any violation of duty by the subagent, even if the agent exercised good faith in selecting the subagent. |
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Term
| duty of sub agent to agent |
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Definition
| the subagent owes the agent who hired her the same duties as she owes to the principal, and she is liable to the agent for losses because of her improper performance. |
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Term
| principal's liability to third parties for acts of subagent |
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Definition
| a principal is liable to third parties for the acts of an authorized subagent to the same extent as if the act had been performed by the appointing agent. This is known as the principal of transparency. |
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Term
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Definition
| principal not liable, there is no agency relation |
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Term
| duty of agent to principal |
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Definition
| agent who hired subagent without principal's authority is liable. |
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Term
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Definition
| whenever you see an agent appointing someone else to perform one or more of his tasks, check to see whether the principal authorized the hiring of a subagent, because this will affect the duties and liabilities of the parties. Only an authorized subagent owes duties to the principal;an unauthorized subagent does not. Likewise, the principal is liable to third parties only for the acts of an authorized subagent. |
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Term
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Definition
| all agents whether compensated or gratuitous, may be held liable in tort for damages resulting from careless performance or breach of fiduciary duty. |
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Term
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Definition
| if malice or bad faith is established, punitive damages may also be awarded against the agent. |
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Term
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Definition
| principal can revoke sell of property if she learns the agent purchased it for himself. A principal can revoke any transaction that violates the agent's fidicuary duty. |
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Term
| note-identity of principal discovered |
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Definition
| there are exeptional situations in which third persons may refuse to proceed with the contract when the identity of the principal is fraudulently concealed. |
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Term
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Definition
| if the principal is held liable for damages to a third party because of the negligent conduct of her agent, she can sue the agent for the amount of the damages. |
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Term
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Definition
| if the agent is hired to develop inventions or patents, any and all rights belong to principal, however, if developing such an item is not a primary part of the agent's duties (example-the agent was not hired to invent or solve a particular problem )any patent or invention is the property of the agent rather than the principal. |
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Term
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Definition
| nonetheless, if the patent or invention was perfected on principal's time and with his money and materials, and is related to principal's business, the principal is deemed tohave shop right to the patent and an irrevocable right to use the idea or invention which does not terminate when the employment ends. |
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Term
| proof of acquisition by inheritance, devise or bequest |
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Definition
| under california family code section 770, property received by one spouse alone at any time by will or intestate succession is seperate property. In certain cases, however, such acquisition recieved during marriage may be shown to be onerous(acquired by labor or other community consideration). If so, the property would be a community asset.for example wife contracts with father to care for him and in return bequeath his entire estate. This is community property. Services rendered after dissolution or while living seperate is not community. |
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Term
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Definition
| even if the item at issue was acquired with cash or other property during marriage, it will be seperate property if the consideration given can be traced back to a bequest, inheritance, or other source of seperate property. |
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Term
| proof of acquisition by gift to one spouse alone |
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Definition
| a gift to a spouse is seperate propert but the donative intent must be proved in court. |
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Term
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Definition
| where a donor makes a gift to one spouse in the sense that he has no enforceable obligation to part with title, yet his motive is to show appreciation for services rendered, the asset is community property on theory it is really the fruit of a spouse's labor. |
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Term
| where donative intent is unclear |
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Definition
| where there is substantial doubt as to donative intent because the donor's motive seems to be advancement of his own inerests, the general pro-community presumption should still apply.example:where wife is given a kitchen appliance on a radio show the pro-commuity presumption is not rebutted. |
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Term
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Definition
| when deciding whether property is seperate because it was a gift, the key question is whether the transferor had donative intent. If the transferor's motivation was to give appreciation for past services rendered or to benefit herself, the property will not be considered a gift, and it probably will be community property. |
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Term
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Definition
| suppose husband's aunt intending that husband and wife co-own the diamonds as community property-delivers the diamonds to wife before the wedding that establishes the community. Ownership must be a tenancy in common because of the acquisition before marriage unless husband's aunt's delivery was conditional upon, and title would not pass until the marriage. |
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Term
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Definition
| when one spouse recieves an asset after seperation, ownership of it can be community, if it can be traced to a pre-seperation community source. |
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Term
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Definition
| although physically seperated, the intent of the spouses governs whether they are trually seperated or not. They could be living seperate for years, but have hope they will reconcile, property of this type might be deemed community. |
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Term
| permanent seperation required |
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Definition
| section 771 should not apply until at least one spouse regards a seperation as permanent. |
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Term
| apportionment of income during section 771 seperation |
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Definition
| if section 771 is triggered, and this is prior to a divorce, and husband and wife own a business together, an apportionement of income (example: a return on seperate labor aand a return on community capital) is required. |
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Term
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Definition
| one case holds that a reconciliation, means that a seperation is not permanent and hence section 771 never applied to the seperated spouses. This unsettling rule means that until a divorce is final, no third party can rely on h's or w's post seperation acquisition as being seperate property no matter how defunct the marriage appears, because reconciliation is always possible. |
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Term
| establishing seperate ownership by tracing to pre-marriage source |
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Definition
| a change of form does not change ownership, and th profits generated (without labor) are treated as part of the captial that produced them. |
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Term
1.pre-marriage source-seperate
2.source unknown-presumed community
3.gift-seperate unless remunerative (example:givent to show appreciation for services rendered).
4. inheritance, bequest or devise-seperate property unless onerous (example:acquired by community labor or other community consideration). |
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Definition
5.post seperation source (temporary seperation(neither spouse views seperation as permanent) -community.
6. permanent seperation (at least one spouse views seperation as permanent)-seperate property (unless traced to pre-seperation community source).
7. post-divorce source- seperate (unless traced to pre-seperation community source). |
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Term
| commingling and uncommingling of assets |
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Definition
| commingling refers to the mixing together of seperate and community assets, usually money. Commingling itself does not change the character of seperate property to community, but the pro-communty presumption usually makes the comingled mass presumptively community. The party seeking to establish seperate property status has the burden of uncommingling the funds into seperate and community shares. |
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| test for other situations-drawer's intent |
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Definition
| the current judicial test for uncommingling where withdrawals have been made is the drawer's intent test is applied to mix. |
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| uncommingling where no withdrawals |
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Definition
| uncommingling is often easy when no withdrawal has been made from the commingled mass. Where each known deposit is still present and can now be withdrawn, each can be given its intitial classification (seperate or community). |
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Definition
| where there is no direct evidence of drawer intent in withdrawing funds from a commingled account, it will be presumed that community funds were withdrawn to pay for expenses of maintaining the household. |
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| flexible application of doctrine |
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Definition
| what constitutes a family expense depends on the relative wealth and customary standard of living of the family. (maid, gardener, trips abroad, etc)-are presumed to have been paid for by community funds. |
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| exception-spouse reimbursed of post seperation funds used |
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Definition
| an automatic reimbursement is presumed where the funds used to pay family expenses or other community debts are seperate property under the living apart and seperate rule 771. |
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Definition
| in summary, when trying to discover whether commingled property is community or seperate, first check to see whether any withdrawals have been made from the commingled mass. If not, the intitial classification of the property that has been commingled governs. If there have been withdrawals, look to the intent of the spouse making the withdrawal to determine whether community or seperate property was withdrawn. If the spouse's intent it unknown look at the spouse's use of the property, if it is used for household purposes, then community property was withdrawn. If the property is used to make investments, courts follow one of the five following approaches: |
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Definition
when deciding which test to apply when apportioning rents or profits from seperaate capital, following these guidelines:
1. if community labor was the chief contributing factor to gain, use the formula most favorable to that estate (example:pereira where the gain is great, and van camp where the gain is small compared to similar type investments).
2. If seperate capital was the chief contributing factor to gain, likewise apply the formula most favorable to the seperaate estate- which wouldmean van camp where the gain was relatively large and pereira where the gain was relatively small.
3. If the gain is average in amount, the only apparent guideline is the mandate of beam, to choose the formual what will achieve substantial justice. The general presumption favoring community property would suggest that neither labor nor capital can be considered the chief contributing factor, the formula most favorable to the community should be used. Remember that substantial justice might be achieved by adjusting the pereira interest rate up or down from the legal interest and by compoinding the interest. Similarly some flexibility in the vaan camp formula could be obtained by calculating simple or compound interest for community earnings retained in the business. |
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Term
| rents or profits from seperate capital: |
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Definition
| rents and profits from seperately owned capital, generated without applying community labor, are 100% seperate property, due to tracing to the capital. But where labor of either spouse plays a part in generating the gain, it will be apportioned into seperate and community components by either the pereira formula or the van camp formula. |
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Definition
| the approach developed in pereira takes the value of the seperate capital and calculates an annual return on it at a particular interest rate over the period for which apportionment is sought. This gives the total seperate return, with all remaining profits being community owned (example:the seperate return is fixed and the community return floats). If profits are unusually large, the community benefits by use of the pereira formula, but if profits are small, the entire gain may be classified as seperate. |
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Definition
| the second approach toapportioning earnings places a value usually per year on the community labor given to the business. The resulting fair salary figure is the community share of the gain while all remaining earnings are seperate property. Under the van camp formula therefore the community share is fixed and the seperate share floats so that van camp is favorable to the community where the gain is small and favorable to the seperate estate where the gain is large in comparison to the amount of capital and labor involved. |
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Term
methods of apportioning business profits
-h owned and managed business valued 100 k at the time he married w. marriage lasted 10 years. At the time of divorce the marriage was worth 400,000. |
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Definition
van camp accounting:
(use if the character of the business was the primary cause of its substantial growth).
value of h's services-300,000 (30,000/yr.)
-less family expenses paid from business earnings (200,000/ yr.)
-equals community property- 100,000
-remaining 300,000 of business's value is h's seperate property. |
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