Term
Employment Relationship
ABC |
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Definition
1. Assent-agreement w/ capacity to agree
2. Benefit- conduct of agent for principal's benefit
3. Control- principal has right to control, supervise performance
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Term
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Definition
Existence of an employment relationship (ABC)
Within Scope of Employment |
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Term
Scope of Employment Relationship
3-Part Test |
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Definition
1. Part of Job Description- conduct hired to perform?
2. Occurred on the job?
Did agent intend to benefit the principal?
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Term
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Definition
No vicarious liability unless there is ABC between P and subagent.
Same for borrowed agents. |
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Term
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Definition
No vicarious liability unless:
1. Contractor injures an invitee to employer's real property
2. Involved in an ultra-hazardous activity. (Substantial injury likely)
3. Estopped from denying because held IC out to be an employee/agent. |
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Term
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Definition
Not liable for intentional torts of an agent/ employee unless:
1. Authorized, or
2. Natural from nature of employment (bouncer)
3. Agent acting to benefit the P. |
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Term
| Duty Agent Owes to Principal |
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Definition
Duty of reasonable care
Duty to Obey Reasonable Instructions
Duty of No Self-Dealing
Remedy- breach of fiduciary duty, disgorge profits, recover losses |
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Term
| Liability for K's entered into by Agent |
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Definition
RULE: Liable for all Ks entered into that agent was authorized for.
Undisclosed Principal
A is not liable unless identity of P is concealed, or Ps involvement is completely concealed
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Term
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Definition
1. Espressed- oral and private is ok, narrowly construed by court
Equal Dignities Doctrine- if K must be in writing, authorization to K must be in writing as well (SoF)
Revoked by: Unilateral act of P or A, Death of P or A unless a Durable POA.
2. Implied Authority- Reasonable belief that A has been given authority, because of:
a) necessity, b) custom, c) prior dealings.
3. Apparent Authority- 2- part Test
A. Principal cloaked agent with appearance of authority,
B. 3rd party reasonably relies on appearance
i. Secret limiting instructions and agent acts beyong limitations, or
ii. lingering authority- stripped of authority but agent continues to act as if still
4. Ratification- authority granted after the K, if
a. P knows of all facts regarding the K,
b. P accepts benefits of K,
(cannot alter terms of the K) |
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Term
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Definition
An association of 2 or more people who carry on as co-owners of a business for profit
Each contributes $ or services in return for share of the profits (prima facie evidence of existence of Pship)
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Term
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Definition
1. Partners are agents of the P-Ship for carrying on usual partnership business.
2. Pship is bound by the torts of the partners acting in scope of Pship business
3. Bound by Ks entered into by partners with authority.
4. Held liable by estoppel if hold out to be partners and party relies on representation.
General partners are liable for the debts of the partnership.
Incoming partners are liable only for new debts, unless assumed (but $ pd in can pay off old).
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Term
| Rights and Liabilities Between Partners |
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Definition
Duty of Loyalty
No Self-Dealing,
No usurping opportunities,
No secret Profits. |
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Term
Partner's Rights in Partnership Property
3-Types |
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Definition
1) Specific- land, leases, equipment- no P may transfer without authority from P-Ship.
2) Profits & Surplus- partner's share in personal property and can be transferred
3) Management- owned by P-Ship- no transfer to 3rd party.
4) No income- except by agreement
Absent an agreement, partners share equally:
1) Management
2) Profits & Losses-by agreement, or these rules
a. Losses shared like profits
b. Profits equally- even if losses not shared equal |
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Term
| Dissolution of Partnership |
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Definition
Starts process of ending partnership
1) Unless agreement, dissolution occurs automatically, upon notice of expressed will of GP
2) If an agreement, requires condition or majority +1P of remaining parties to dissolve within 90 days of disassociation |
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Term
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Definition
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Term
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Definition
| time in between the dissolution & termination where remaining Ps liquidate the P-ship assets to satisfy creditors |
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Term
| Liability During Winding Up |
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Definition
OLD BUSINESS: P-ship and Ps stay liable on all old business
NEW: Pship and Ps liable on new transactions until actual notice of dissolution given to creditors or 90 days after filing notice of dissolution w/ state.
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Term
Priority Distribution
(4) |
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Definition
1) Outside creditors, all non-partner trade creditors
2) Inside creditors, all Ps who have loaned to P-ship
3) Capital contributions by Ps (no interest agreements)
4) Profits and Surplus, if any. |
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Term
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Definition
1) 1 GP and 1 LP
2) Must file docs with names ID'ing who is who
3) LPs aren't personally liable for L-Pship.
4) GPs are liable for obligations of L-Pship |
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