Term
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Definition
| The relationship which results from the manifestation of consent by 1 person to another that the other shall act on his behalf and subject to his control and consent by the other so to act. |
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Term
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Definition
| Burden is on the person claiming it |
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Term
| Agncy - Independant Evidence tending to prove agency |
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Definition
| Needs to be competent to prove all acts alleged of alleged agent pertianing to business, as well as declarations acting as agent to the transaction; order of proof all isn't rigid. Proven by circumstances, evidence, conduct - show P knows acts of A and consented. |
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Term
| Agency - People and Entities |
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Definition
Even if no AR, if it meets the statutory requirments then it is an AR.
Can be a corporation |
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Term
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Definition
| Person who does the acting (does the doing) |
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Term
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Definition
| Person acted for (wants something done) |
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Term
Agency - 3 Components
Consent |
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Definition
Does not have to be perfectly clear, look at behavior (formal/informal or expresses/implied).
Must be in writing: contigency based, contract (clt P, lawyer A), trustee, POA (durable/medical/real estate), SOF.
Silence can be implied |
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Term
Agency - 3 Components
On Behalf of |
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Definition
A undertakes to act on behalf of P - "Do this for me"
Who is A working for, contract b/w Ins Co and ER, the EE is a 3rd party
Might be volunteer |
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Term
Agency - 3 Components
Control |
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Definition
Subject to P; does not have to be continuos; must be some sense that P is in charge; question of fact or law); can be any degree
Primary test - look at right or duty to control/direct the time, place and means
May be proven by condition precedent |
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Term
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Definition
| Must prove act on behalf of P even if consented |
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Term
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Definition
Does not matter if married
Not an agency relationship, must prove spouse was A
Spouse by virtue of marriage does not have authority to act as A |
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Term
| Agency: EE - ER Relationship |
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Definition
EE - A and ER - P
Respondent Superior - wrong of A = wrong of P
Loaned Servant - can transfer liability to new master
Tort of EE to ER if w/i scope of employment; intentional when wilful and knowing |
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Term
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Definition
| A delivery of personalty for a particular purpose or on a mere deposit, on a contract expressed or implied that after the purpose has been fufilled it shall be re-delivered to the person who delievered it or otherwise delt w/ according to his direction or kept until he reclaims it. |
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Term
| Agency: Joint and Several Liability |
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Definition
Actively participate in tortious conduct, intentionally aide the act, ratify and adopt tortious conduct done for benefit.
Factors: time, place, purpose act; act similarity to other acts EE authorized to perform; whether act is commonly performed by EE; extent of EE departure from normal methods; whether EE would reasonably expect such act to be performed |
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Term
| Agency: Indepedant Contractor |
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Definition
One who, exercising an independant employment, contract to do a piece of work according to own methods, and w/o being subject to control oof his ER, except as tp the results of his work.
RIGHT TO CONTROL
ER libale: retian control manner/means work, engages on IC, nusiance per se |
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Term
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Definition
| A creditor who assumes control of his debtor's business b/c liable to P for the acts of the debtor in connection w/ the business. |
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Term
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Definition
Express - actual, Yes you can do that
Implied/Incidental - had to get work done and done it before
Apparent - customary practice (office manager does in office) |
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Term
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Definition
Any person engaged in construction industry, including principle contractors, intermediate contractors, and subcontractors, shall be required to carry WC insurance
Except: own property and no compensation
Agency as a defense
Hire someone to paint have IC; hire someone for a lot of jobs have EE |
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Term
| Agency - Duty of Good Faith and Loyalty |
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Definition
Matters concerning SM of AR
A must act for P only and not for themselves or others
Must notify P of all material matters |
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Term
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Definition
For A to avoid liability must disclose P
Party to transaction has notice A is/may be acting for P but has no notice of P identity - partially disclosed
Personally liable for debts of A acting w/i scope pf A; 3rd party can sue A; inherint agency power - estopple of liability of undisclosed P |
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Term
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Definition
Confirmation after conduct
Must ratify the whole
Express, Implied, Silence
P liable for fraud of A when accepts benefit even if did not know
If unauthorized transaction must disaffirm w/ reasonable promptness |
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Term
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Definition
Dereliction of duty - an A exists b/w the Co and imposter b/c of not for the Co lack of reasonable survallience and supervision, the imposter wouldn't have been able to conduct business on Co behalf
Undisclosed P must know about 3rd party (K voidable) |
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Term
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Definition
Reasonable person who would have been placed on notice of irregularity of transaction or knew/should have act complained of was not in incompetnents best interest.
Must prove when A breaches fiducary duty in agency by estoppel |
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Term
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Definition
Giving someone permission to do something on your behalf
AR reduced to writing
Durable must say or ends when someone b/c compenent
Equal digities rule requires relationship be in writing for transactions entered into that must be in writing |
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Term
| Agency - Guardian Ad Litem |
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Definition
Best interest of person, advocate, investigate, suggest
Incompetent, Elderly, Children |
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Term
| Agency - Attorney Ad Litem |
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Definition
| Advoate for what person wants |
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Term
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Definition
AR for end of life decisions
DPOA Healthcare - medical decisions on behalf of person when incompetent and unconcious (0% recovery) |
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Term
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Definition
P designates another a attorney in fact in writig.
Show intent of P authority conferred is exercised notwithstanding disability and incapacity
P power to K for AR; C&C to set aside; P can't ? |
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Term
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Definition
Extent control
What call themselves
Distinct business
Degree supervision
Skill required
Who supplies staff
Length employment
Pay method
Part ER regular business
What parties believed relationship was |
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Term
| Agency - Imputed Knowledge |
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Definition
| There shall be no impuation of knowledge ot information among or b/w clts, managing broker, and any designated agency situation |
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Term
| Agency - Inherently Dangerous Activity |
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Definition
| Non-delegable duty to exercise caution adeqaute to the peril involved |
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Term
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Definition
Beyond the power
Agents, officers, or city council members of a municiple corp cannot bind the corp by any K which is beyond the scope of the corp or which (not auth) against P. |
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Term
| Agency - Actual Authority |
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Definition
expressed authority; contained w/i 4 corners of agency agreement.
No writing unless SOF |
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Term
| Agency - Implied Authority |
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Definition
Authority that A reasonably believes they have b/c of what P wants to do
Custom and usage; acquiescence (P doesn't object); Emergency (A no isntructions, use resoanable steps necessary until contact P) |
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Term
| Agency - Apperent/Ostensible |
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Definition
P actually/negligently acquised in anothers exercise of authority
3rd person had knowledge of facts and good faith belief apparent agent possessed authority
3rd person relied on authority to detriment
No authority unless P allows K
By position, prior acts, imposters- estopple |
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Term
| Determination of Agency Relationship |
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Definition
| Question of fact or law - look at circumstances |
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Term
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Definition
General rule death terminates P-A relationship - even durable
Except: authority of power of A coupled w/ an interest then SM of agency isn't revocable by death or act of P |
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Term
| A has a duty not to benefit from 3rd party using agency position |
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Definition
Duty of loyalty and good faith
Get CT w/ secret profits (disgorged)
A can't recieve compensation in connection w/ AR. P - knowledge and consent
3rd party pays A and A keeps; A tried to make $ doing what P asks but hides circumstances; A uses position and makes personal $ from totally disconnected relationship |
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Term
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Definition
An association of 2 or more persons to carry on as a business for profit
Must share in profits - net not gross; prima facie evidence |
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Term
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Definition
Entity, terminable at will; can have agreement (writing not required)if no writing statutes control; inferred from circumstances
Can be corp, LLC, person - never charity
Terminable at will or for a term |
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Term
| Partnership - Sole proprietorship |
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Definition
| One person doing it - by yourself - going out and doing business - sole tax liability |
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Term
| Partnership - General Partnership |
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Definition
| 2 or more ppl who take on a business - tax liability flows through personal account partners |
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Term
| Partnership - Joint Venture |
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Definition
| Partnership for a particular purpose - limited and specifc purpose - does not have to be actul partnership |
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Term
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Definition
Where 2 or more persons are sued as partners, in law or equity, it shall not be necessary to prove the partnership unless the fact of the partnership is denied under oath of those so sued
Only use admission w/ plain probative connection
Burden on one asserting
Co-ownership alone isn't enough |
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Term
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Definition
Partnership law is a branch of Agency law
Limited to transaction w/i scope of partnership business and 1 partner isn't bound by auth acts of co-partner not w/i scope partnership |
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Term
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Definition
Acquires property for partnership purposes w/ partnership funds, the property b/c personalty and stays w/ partnership - doesn't go to heirs
Factors: name, indicate in instument, partnership $, intent, used in business, improved, asset on books, pd maintiance costs and taxes
Renew a lease in partnership name stays property |
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Term
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Definition
Once determined partnership property - held in tenancy
Each partner has an equal right possess unless authorized by others
Can't: assign rights; mortgage part; satisfy individual debt |
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Term
| Partnership - Couse and Scope |
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Definition
If act outside course and scope of partnership then not liable or bound
Must be in furtherance of partnership - usual course and scope |
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Term
| Partnership - Cheif Executive Officer |
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Definition
Governing law for cases involving partnership or b/w partners
Can't have clause that says litigate in Atlanta if suit w/ 3rd party |
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Term
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Definition
Just b/c own something doesn't make partnership - gross returns doesn't count
Share in profits presumed, rebutted by: debt by installment, IC, check for rent, annuity/retirement, $ pd back or selling partnership something including good will
C&C proof |
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Term
| Partnership - Statement of Authority |
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Definition
| File to put on notice and take away by filing something |
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Term
| Partnership - Elements Courts Look At |
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Definition
Intention of parties
Right to share in profits
Obligation to share in losses
Ownership/Control property and business
Community power administration
Language in agreement
Rights in dissolution
Look at totality of circumstances |
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Term
| Wriiten Partnership Agreement |
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Definition
K will bind partnership although signed q/ individual names, shown firm transaction, and intended as firm obligation
Majority vote for decisions
Agreements of managing and obligations |
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Term
| Partnership - Duties Owed |
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Definition
Loyalty and Care
Not breach b/c partner furthers own interest |
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Term
| Partnership - Basic Fiducary Duties |
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Definition
Parnter must account for any profit acquired in the manner injurious to interest of partnership - commissions of purchase on sale propery
Partner cannot w/o consent partners, acquire for himself a partnership asset, nor may be divided to own use partnership oppertunity
Must not compete w/ partnership w/i scope of business |
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Term
| Partnership - Jurisdiction |
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Definition
| Although not legal entity for all purposes an action will lie where the partnership is located |
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Term
| Partnership - Joint and Several Liability |
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Definition
Liable for matters growing out of wrongful acts of partnership and all obligations
Debts, losses
Not liable before or after leave
Action against all or some partners - can't satisfy judgment w/ partnership assets |
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Term
| Partnership - Determining if One Exists |
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Definition
| Persons who are not partners as to each other are bot partners as to a 3rd person |
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Term
| Partnership - Res Judicata |
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Definition
A judgment against 1 partner is not res judicata against other partners
May sue some or all partners |
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Term
| Partnership - Monetary Interest in Firm |
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Definition
A partners interest in the firm is an interest in the profits and surplus (pecuniary interest) - personal property interest
Interest can be assigned - get rights to profits and surplus on dissolution
Can't assign property |
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Term
| Partnership - Joint and Several Liability |
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Definition
Liable for matters growing out of wrongful acts of partnership and all obligations
Debts, losses
Not liable before or after leave
Action against all or some partners - can't satisfy judgment w/ partnership assets |
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Term
| Partnership - Determining if One Exists |
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Definition
| Persons who are not partners as to each other are bot partners as to a 3rd person |
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Term
| Partnership - Res Judicata |
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Definition
A judgment against 1 partner is not res judicata against other partners
May sue some or all partners |
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Term
| Partnership - Monetary Interest in Firm |
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Definition
A partners interest in the firm is an interest in the profits and surplus (pecuniary interest) - personal property interest
Interest can be assigned - get rights to profits and surplus on dissolution
Can't assign property |
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Term
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Definition
A person who represents himself or permits another to represent to anyone as a partner in an existing partnership or w/ others not actual partners, is liable to whom such representation is made who has given credit to the actual or apparent partnership
Potentially liable for unauthorized acts |
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Term
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Definition
Owe highest duty of loyalty to partners - not to ursurp oppertunities (consent and disclosure)
Ask if partnership/others are harmed - meet burden w/ ratification |
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Term
| Partnership - Leaving Frim |
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Definition
Must render on demand true and full info of all things affecting partnership
May be in agreement what happens
Must tell firm before contacting clts - can't mandate clts stay w/ firm but firm owns the files |
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Term
| Partnership - Involuntarily Expelled |
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Definition
Must be bona fide or in good faith
Address aging and fading in agreement |
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Term
| Partnership - Renumeration |
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Definition
| Don't get paid for partnership services unless agreed |
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Term
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Definition
Rights in managment
Fiduciary duty - care and loyalty
Profits made in course business
Not entitled to compensation for services |
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Term
| Partnership - Indemnification |
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Definition
| Must reimburse a partner for payments made and liabilities incurred in course and scope of partnership business |
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Term
| Partnership - Contribution |
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Definition
| 1 partner is compelled to pay more than fare share of partnership debt - can get paid pro rata share |
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Term
| Partnership - Dissolution Payment Order |
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Definition
Outside Creditors
Partnership debts
Capital contributions
Profits and losses equally divided |
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Term
| Partnership - Legal Actions |
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Definition
General rule is no actions b/w partners
Cannot sue or be sued by the partnership |
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Term
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Definition
Misappropriation is made by partner in charge of business and discovered by other partner affact his said interest in business, selling partner has right to accounting
Dissolution, winding up, secret profits, cause of action when agreement states, court feels reasonable |
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Term
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Definition
Reasonable expectation of continued profitable operation
Name of firm, reputation for doing business, locatio, #/character of customers, former sucess, and other elements advantageous in operation business
Property right when sold
1 person cannor dispose of |
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Term
| Partnership - Dissolving: Creditors |
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Definition
| Liability for partner if 3rd party creditor has not been put on notice partnership exists; advise no longer a partnership |
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Term
| Partnership - Flags Dissolution |
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Definition
Partner leaving; partner tries to leave; b/c unabl, circumstances occur, unable to continue
Partnership continue or wind up
Dissociated - partner leaves; Dissolved = partnership folds
Make it known, close books, wind up, state in tax returns |
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Term
| Partnership - New After Dissolution |
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Definition
New entity - TN follows entity theory
Not terminated but dissolved
Not fully performed obligations cannot have dissolution - breach of K |
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Term
| Partnership - Dissolution: Court |
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Definition
Special master/reciever/conservator - carry out what wants done
Equitbale and desirable - no unclean hands doctrine
Accounting even w/ wrongdoing
Agree to dissolution in pleadings - dissolved
Court can when equitable and just
Where disagreements of such nature/extent all confidence/cooperation b/w parties jas destroyed or behavior materailly hinders proper conduct |
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Term
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Definition
Equal rights unless agreements provide otherwise
Fiducary Duty
Profits in course and scope - no compensation for extra services |
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Term
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Definition
Make a profit off partnership property
Might be able to buy property and the use personally - must disclose even if other side cannot take advantgae |
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Term
| Partnership - Fiducary Duty |
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Definition
Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property. This section applies also to the representatives of a deceased partner engaged in the liquidation of the affairs of the partnership as the personal representatives of the last surviving partner.
l. The fundamental rule that the relationship of partners is fiduciary and imposes on them the obligation of the utmost good faith and integrity in their dealings with one another with respect to partnership affairs is universally recognized in the modern cases and is reinforced by the Uniform Partnership Act.... Also well established is the applicability of this fiduciary duty on the sale of one partner's interest to another partner, the courts often characterizing the duty as being "particularly" or "especially" applicable to this situation. Although it is no longer disputed, at least in theory, that such a sale will be sustained only when it is made in good faith, for a fair consideration, and on a full and complete disclosure of all important information as to value, the rule's application is by no means as clear and simple as its statement; and the specific content of such terms as "good", "fair", "full", and "important" can be known only by relating the particular conduct and circumstances of the parties to the results reached in the cases. |
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Term
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Definition
| Upon dissolution, a withdrawing partner who has not wrongfully dissolved the partnership may require a winding up of the partnership affairs, T.C.A. s 61-1-136, and share proportionately in both profits and losses until termination, when all partnership affairs are settled. In this event, the respective interests of the partners in the partnership, including profits and losses, do not change until final settlement (termination). See Shepherd v. Griffin, 776 S.W.2d at 122. If, on the other hand, the business continues as set forth in T.C.A. s 61-1-141, and there is no settlement of accounts as between the retiring and continuing partners, the outgoing partner becomes a creditor of the former partnership to the extent of his investment and is entitled to the value of his interest in the partnership on the date of dissolution with interest, or in lieu thereof, the profits attributable to the use of his right in the property of the dissolved partnership. So long as a retiring partner's share of the assets remain in the continuing business and are being utilized by the continuing partner to effectuate a profit, the outgoing partner is entitled to those profits attributable to his remaining share, undiminished by any losses. Dissolution of the partnership and continuation of the business, however, does not affect the status of the assets. The assets remain partnership assets until a final settlement of accounts between the former partners. |
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Term
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Definition
Bind any transaction which bind partnership if dissolution had not ocurred provded other party to transaction had extended credit to partnership prior to dissolution and had no knowledge or notice of dissolution. Burden on partner - clear and satisfactory
Can limit ability to bind but prob won't work unless 3rd party knows about
Bind for winding up purposes |
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Term
| Partnership - Terminable at Will |
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Definition
Ends when want it too - no reason needed
Dissolved by express will of any partner when no def term/undertaking specified - profitable or not
Cannot dissolve to get benefit or business for self, unless fully compensate co-partners for share prospective business oppertunity |
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Term
| Partnership - Implied Term |
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Definition
| Court requires a finding parties entered into a particular undertaking and must be capable of accomplishment at certian/specified point (even if unacertianable at time) |
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Term
| Partnership - Purchasing Assets |
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Definition
Majority of partners may purchase assets at judically supervided dissolution sale (at will)
Change partnership by majority vote - meet and discuss everything, have meeting and attend, let partner want out speak as much as possible |
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Term
| Partnership - Wrongful Dissolution |
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Definition
Partner who has not wrongfully caused dissolution has the right to contunie the business in same name and recieve damages for breach
Wrongful partner has right to compensation minus damages |
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Term
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Definition
| Basic rule is bound by K made by agent only if there is some type of authority or ratification by P after the fact |
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Term
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Definition
Authority contained w/i 4 corners of agreement
Oral or Informal K
Equal Dignities Rule |
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Term
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Definition
| A reasonably believes she has b/c of certian acts of P |
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Term
| Incidential or Express Authority |
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Definition
A has implied authority to do things necessary to accomplish what expressly authorized to do
custom and usage - unless otherwisw as A has implied authority to do whay is customarily done by ppl similarly situated
Acquisance - p fails to object to series of unauthorized acts; A can do similar acts reasonably believes authorized
Emergency - A no instructions on what to do in AR which touches going conern of K to P, take reasonable measures necessary until contact P (ASAP) |
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Term
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Definition
Either Party - Fired or Quit, might have breach of K action (damages) if comp relationship but don't have to perform.
Death/Incapacity - durable docs
Impossibility Performance - can't do it, buy specfic house and not able
Breach Fiduciary Duty - P still bound if 3rd party doesn't know breach occured.
Anything else that would lead a reasonable person to know no longer AR. |
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Term
| Apparent Authority or Ostinsible Authority |
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Definition
That which a 3rd party reasonably believes that the person has. Belief must result from action/inaction of P.
By position - are acts normally performed by person similar position
By Acts - A exceeds authority in past a P is aware A has apparent authority as to 3rd parties that know A's acts until advised otherwise
By Prior Authority - was at time of actual authority which terminated, A keeps acting when 3rd party never informed authority terminated
Imposters - P negligently allows imposter to hold out as A of P (furniture store cases) |
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Term
| Steps to Apparent Authority |
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Definition
P liable when: 3rd party reasonably believes A is authorized
Actions of P casued belief
3rd party relied upon it
Form of estoppel - P estopped to deny A relationship and action |
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Term
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Definition
Affirmance of an unauthorized act so as to make the P bound
Expressly; accepting benefits; silence when duty to inform/reject act |
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Term
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Definition
Either Party - Fired or Quit, might have breach of K action (damages) if comp relationship but don't have to perform.
Death/Incapacity - durable docs
Impossibility Performance - can't do it, buy specfic house and not able
Breach Fiduciary Duty - P still bound if 3rd party doesn't know breach occured.
Anything else that would lead a reasonable person to know no longer AR. |
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Term
| Apparent Authority or Ostinsible Authority |
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Definition
That which a 3rd party reasonably believes that the person has. Belief must result from action/inaction of P.
By position - are acts normally performed by person similar position
By Acts - A exceeds authority in past a P is aware A has apparent authority as to 3rd parties that know A's acts until advised otherwise
By Prior Authority - was at time of actual authority which terminated, A keeps acting when 3rd party never informed authority terminated
Imposters - P negligently allows imposter to hold out as A of P (furniture store cases) |
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Term
| Steps to Apparent Authority |
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Definition
P liable when: 3rd party reasonably believes A is authorized
Actions of P casued belief
3rd party relied upon it
Form of estoppel - P estopped to deny A relationship and action |
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Term
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Definition
Affirmance of an unauthorized act so as to make the P bound
Expressly; accepting benefits; silence when duty to inform/reject act |
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Term
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Definition
Most likely P; A is generally not liable unless: Parties intended A to be liable and indemnification of P wasn't disclosed
Argue all theories of liability and all defenses thereto! |
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Term
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Definition
| A is a fiduciary. A owes P a duty of undivided loyalty, when A breaches forfeit comp. A has duty to do agency w/ reasonable care and notify P of all matters affecting SM of agency. The knowledge of A is imputed to P, except: A acts adversly and wholly for A's benefit. A acts for adverse party w/ knowledge/consent both. 3rd party bribes A, P can rescind K and recover from briber or A. A has duty to follow all reasonable legal directions from P. A liable to P losses incurred as result of A's negligence or intentional misconduct in carry out AR. P owes A for expenses/losses in carrying out P instructions. |
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Term
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Definition
| Tort Liability of ER for acts EE. EE-ER relationship (authority inferred) and conduct w/i scope of employment (strict lliability - care taken in selecting training and supervising EE not relevant). Generally liable for torts of EE not IC. Where ER creates apperance that there is such relationship and the 3rd party relies on it, ER may be estopped to deny it (furniture store case) |
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Term
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Definition
What call themeselves
Distinct Business
Supervision
Skill required
Supplies tools
Period of employment
Payment by time, job
Business or personal
Statutory exceptions |
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Term
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Definition
P knowingly/negligently hires IC
Inherently dangerous acts (blasting, dangerous animals, expand class)
Non-delegable duty breached
Unlawful act instructed
Nusiance act |
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Term
| ER Liabale for Acts w/i Scope of Employment |
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Definition
Customary by EE
Time, place, purpose of act
Furtherance of ER enterprise
ER furnished instrumentality
Criminal act
*Most important - whether ER was promoting EE interest |
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Term
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Definition
Generally ER is not liable unless: Force is authorized; security, bouncer
Tort in promotion of ER business
Tort from friction inherent to business; car repossession |
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Term
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Definition
| EE acts on the way to and coming from work are generally outside the scope of employment |
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Term
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Definition
ER not liable for acts taken if EE deviates from assigned duty (car cases)
TN Statute - ER ownership of car is prima facie evidence that EE acting w/i course and scope employment (rebuttable)
TN Courts held ER liable unless marked deviation/departure from ER business interest.
ER exposure to liablity recommences when EE returns to the line of duty and cures frolic and detour |
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Term
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Definition
P must prove:
Car used for use of pleasure of owner's family
Used in furtherance of purpose
With owners permission |
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Term
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Definition
Statutory TN (healthcare/living will)
Can state that b/c effective upon disability/incapacity or appoint and is unaffected by later disability/incapacity.
Death of P will not revoke authority of an A who does not have actual notice of death (notice terminates) |
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Term
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Definition
Association of 2 (+) partners to carry on as co-owners a business for profit.
Person or entity; joint venture (limited purpose); no formalities; can't assign rights in property; can't mortgage rights in property; can't use property to pay individual debts; at death rights in assets descends to surviving partners |
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Term
| Reciept of Shate of Profits of Business is Prima Facie Evidence that Person is Partner but for: |
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Definition
Payment of debt
Recieve wages
Receive rent
Annuity to deceased partner
Consideration for sale of property of a business
Sharing gorss returns - not profit
Sharing expenses - not profit |
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Term
| Determining if Property Belongs to Partnership |
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Definition
Intent of partners?
Factors: acquired w/ partnership funds; used in business; improved property w/ funds; acquired in name; listed as asset on books; paid maintiance costs/taxes |
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Term
| Partnership Property is Held in Tenancy of Partnership |
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Definition
| Each partner has an equal right to possess it but only for partnership purposes unless authorized otherwise by other partners |
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Term
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Definition
What constitutes a partnership is generally a question of law.
Whether a partnership exists under conflicting evidence is a question of fact.
Whether the behavior of a partner dissolves the partnership is a question of fact. |
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Term
| Partnership: No Written Agreement |
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Definition
P bears the burden of proving existance by C&C.
May be implied from circumstances where appears that indiv involved entered into business relationship for $, combining labor, skill, and experiance.
No implied partnership - no partnership property |
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Term
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Definition
Requires formalities that must be followed: if not followed b/c GP and no limited liability.
Must beGP (liable)
Must file cert limited partnership form w/ Sec State (name partnership w/ limited partnership, limited P, LTD P, LP; name/address reg agent; name/address GP; sig GP).
Must be LP - no personal liability debts if SC w/ formalities, might lose $ put in. No SC the liable as GP; person good faith belief LP may avoid liability; person relies/believes GP liable to that person (fix w/ cert and formalities); if LP part in control and person relies/believes GP liable. |
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Term
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Definition
| Partnership or GP = means same thing |
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Term
| Partnership: Article of Partnership should contain |
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Definition
Name under which partnership is to be conducted
General nature of business transacted
Names GP and LP and place residence
Amt capital ea contributes
Period at which partnership is commenced and terminated |
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Term
| Partnership: When PPL die |
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Definition
May follow in face death; can open estate and keep case alive
Dead man can make estate a partner if other partners agree and also by acquisance. Wants to be liable after death |
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Term
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Definition
May be agreement alters.
Right to acess info, must be consulted, must be allowed to vote
Deprive partner of and violate agreement - freeze out may cause dissolution |
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Term
| Partnership: Security Interest |
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Definition
Allowing partner to obtain in capital contribution insulating himself from risk, defeats purpose of LP.
Partner may not be creditor of LP w/ regard to capital contribution to LP. |
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Term
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Definition
Term refers to party's contribution to a project in the form of effort - as opposed to financial equity which is contribution in the form of capital.
Absent agreement share in lossess same as profits (80 - 20) |
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Term
| Partnership: Power under Partnership K |
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Definition
No specific grant of permission to buy property not authorized. (consent others needed).
Meaning of K provision relative to comp of GP must be considered in light of fiduciary duty of GP and extra ordinary powers of managment given by uniform and revised acts.
Agreement gives power to K but K violated a FD - self dealing; GP not usually given power to K and courts usually don't uphold (narrowly construed). |
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Term
| Partnership:Uniform Limited Partnership Act and Revised Uniform Limited Partnership Act |
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Definition
Record doesn't contain any evidence appellants made the necessary election to be governed by revised act.
Look at intent of parties to choose.
Must follow LP formalities.
Silent on issue statute controls.
Interpretation of ambiguos K is a ? of law |
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Term
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Definition
| break up, cut adrift, cut off, detach, disassociate, disband, disconnect, disengage, disjoin, dispart, disperse, displace, dissever, disunite, divide; Has to be an implied term or definitive term or can’t wrongfully dissociate |
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Term
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Definition
| The termination, cessation, or winding up of a legal entity such as a corporation or partnership; putting an end to the partnership. |
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Term
| Partnership: Complicated Accounting |
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Definition
| No right to trial by jury w/ a complicated accounting |
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Term
| Partnership:Profits and Losses |
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Definition
It is the general rule that in the absence of an agreement to the contrary the law presumes that partners and joint adventurers intended to participate equally in the profits and losses of the common enterprise irrespective of any inequality in the amounts each contributed to the capital employed in the venture, with the losses being shared by them in the same proportions as they share the profits.
Where however, as in the present case, one partner or joint adventurer contributes the money capital as against the other’s skill and labor neither party is liable to the other for contribution for any loss sustained. Thus, upon loss of the money the party who contributed it is not entitled to recover any part of it from the party who contributed only services.
Where 1 person or JV contributes capital while the other contributes skill and labor neither party is liable to the other for losses. Where 1 party contributes $ and the other contributes services, in the event of loss the value of his own capital or contribution.
This doesn’t apply to 3rd party creditors – if 3rd party creditor the partners are jointly and severally liable |
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Term
| Partnership: Buyout Agreement |
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Definition
Put provision in agreement; Lawyer should suggest a buy-sell agreement in every K (book says this is malpractice); Buy-Sell agreements are rarely litigated
Possibility of liquidation is always there – buy sell agreement helps the business keep going and can say the business can keep going
Can say buy sell agreement can be re-evaluate each year but a formula that says what worth is a better choice
Buyout agreement needs to be clear and unambiguous - might leave (complicated) or die (easier) |
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Term
| Partnership: Control in LP |
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Definition
Is there enough control to strip LP and make GP
A LP shall not become liable as a GP unless in addition to the exercise of rights and powers as LP, he takes control of business |
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Term
| Partnership: P can sue another P for: |
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Definition
| accounting, secret profits, breached duty, wrongfully excluded, owe me money and didn’t contribute fair share, court feels an accounting would be just and equitable |
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Term
| Partnership: Self dealing |
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Definition
Court narrowly construe and the burden is on the one who did the self dealing has the burden to show that it is not unfair (burden shift)
Fairness viewed in light of the circumstances at the time of the transaction |
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