1) there is a principal agent reationship

2) the tort was committed by the agent within the scope of that relationship

Assent - informal agreement b/t principal who has capacity and the agent

Benefit - agent's conduct must be for the principal's benefit

Control - principal must have the right to control the agent by having the power to supervise the manner of the agent's performance

When there is:

Assent

Benefit

and the right to Control between the principal and the tortfeasor (sub-agent)

NOTE: assent and control will be hard to find

There is no vicarious liability for an independent contractor's torts.  

2 exceptions:

1) if contractor commits tort during ultra-hazardous activity, and

2) estoppel - if you hold out your independent contractor with the appearance of agency, you will be estopped (liable) from denying liability in tort

1) was the conduct "of the kind" agent was hired to perform?

2) did tort occur during a frolic or detour

3) did the agent intend to benefit the principal?

Intentional torts are generally outside the scope of agency

Exceptions: intentional torts are within scope if conduct was

1) authorized by the principal

2) natural from the nature of employment

3) motivated by a desire to serve the principal

The principal used words to express authority to the agent.  The words could be oral and private, but it is narrowly construed.

Exception:  if the K itself must be in writing, then the express authority must also be in writing

1) unilateral act of either the principal or the agent, or

2) death or incapacity of the principal (except if principal gives agent a durable power of attorney)

Exception: actual authority will survive death or incapacity if the principal gives the agent a durable power of attorney (that has conspicuous survival language)

Authority which the principal gives the agent through conduct or circumstance.  It can arise through

1) NECESSITY - all tasks which are necessary to accomplish an expressly authorized task

2) CUSTOM - all tasks which are customarily performed by persons w/ agent's title or position

3) PRIOR DEALINGS between the principal and agent - tasks which the agent believes he is authorized to do by prior acquiescence

1) the principal "cloaks" the agent with the appearance of authority

2) a 3rd party reasonably relies on the appearance of authority

Authority can be granted after the contract has been entered, if:

1) principal has knowledge of all material facts regarding the contract, and

2) principal accepts its benefits

Exception:  ratification cannot alter the terms of a contract

If a principal is

partially disclosed or undisclosed (identity concealed or fact of principal concealed),

an authorized agent may nonetheless be liable at the election of the third party

1) duty of care

2) duty to obey instructions that are reasonable

3) duty of loyalty (not self-deal [get benefit to detriment of principal], usurp the principal's opportunity, or make a secret profit)

Sharing of profits.

A contribution of money or services for a share of profits creates a presumption that a general partnership exists.

 However, the presumption can be rebutted if the intent of the parties is contrary

BUT: a mere lending arrangement is NOT a partnership

By filing a notice of dissociation with the state.

Withdrawing partner retains liability on future debts until 1) actual notice of dissociation is given to creditors, or 2) until 90 days after filing of a notice of disassociation with the state.

Under an action for accounting the partnership may

1) recover for losses caused by breach

2) may cause partner in breach to disgorge profits he made

whose money was used to buy the property?

If partnership $$$ -> partnership property

If personal $$$ -> personal property

Land, leases, or equipment owned by the partnership itself.

They may not be transferred by any individual partner without individual partnership authority

Absent an agrement, profits are shared equally, like profits

Absent an agreement, losses shared like profits

NOTE:  doesn't work other way around (if silent about profits but not losses, profits always shared equally)

1) all creditors MUST be paid (outside nonpartner trade creditors and all partners who loaned money into partnership)

2) all capital contributions by partners MUST be paid

3) profits and surplus, if any

A partnership with at least 1 general partner and at least 1 limited partner, resulting in 2 tiered liability structure

Formation:  unlike general partnership, have to file a LP certificate - includes names of the general partners

General partners are liable for all limited partner debts, but they have the right to manage the business

Formed by registering a statement of qualification and annual reports.

Liabilities:  no partner (GP or LP) liable for debts of partnership itself

Owners, who are called members, have the same limited liability of shareholders, plus benefits of partnership tax status.

When there is:

Assent

Benefit

and the right to Control between the principal and the tortfeasor (borrowed agent)

NOTE: assent and control will be hard to find

Limited partners are not liable for limited partnership debts. The law in most states (and CA) is that an LP may not manage the business without forfeiting their limited liability status. But, under the newly revised Limited Partnership Act, limited partners may now manage w/o forfeiting their limited liability status