Agency, Partnership and the Llc in a Nutshell

by Hynes, J. Dennis

• ISBN13: 9780314234339
• ISBN10: 0314234330
• Edition: 2nd
• Format: Paperback
• Copyright: 2000-12-01
• Publisher: West Group

Summary

Rights and Duties Between Principal and Agent, Partners, and Members of an LLC; Vicarious Tort Liability; Express, Implied and Apparent Authority; Inherent Agency Power; Undisclosed Principal; Ratification; Notice, Notification, Imputed Knowledge; Termination of Authority; Partnership Formation, Operation and Termination; Fiduciary Duties Among Partners; Right to an Accounting; Creditors' Rights Against Partners and the Partnership; Dissociation and Dissolution; Winding-Up; Liquidation. Limited Partnership and the LLC: Creation, Operation and Dissolution.

Table of Contents

Preface	v
Acknowledgments	vii
Research References	xix
Table of Cases	xxv
Introduction	1	(2)
PART I. BASIC TERMINOLOGY
Glossary	3	(9)
The Agency Relationship	12	(29)
Defining the Agency Relationship	12	(9)
The Restatement of Agency Definition	12	(2)
The Elements of an Agency Relationship	14	(4)
Uses of Agency; Ambiguity of the Word ``Agency''	18	(3)
The Principal	21	(1)
Introduction to the Liabilities of a Principal	21	(2)
The Agent	23	(1)
Distinguishing the Agency Relationship From Other Relationships	24	(17)
Agent or Seller	24	(3)
Agent or Bailee	27	(1)
Agent or Trustee	28	(1)
Principal or Creditor	29	(1)
Agency and the Corporate Board of Directors	30	(2)
Complex Agency Relationships	32	(9)
PART II. INTERNAL MATTERS: RIGHTS AND DUTIES BETWEEN PRINCIPAL AND AGENT
Duties of Principal to Agent	41	(12)
Duty to Pay Compensation	42	(4)
Duty of Reimbursement, Indemnity, and Exoneration	46	(2)
Duty of Care	48	(3)
The Fellow Servant Rule	48	(1)
Worker's Compensation	49	(2)
Duty to Deal Fairly and in Good Faith	51	(2)
Duties of Agent to Principal	53	(18)
Duty of Good Conduct; Duty to Obey	54	(1)
Duty to Indemnify Principal for Loss Caused by Misconduct	55	(2)
Duty to Account	57	(1)
Duty of Care and Full Disclosure	57	(3)
Duty of Loyalty	60	(11)
Loyalty During the Relationship	62	(1)
Scope of Fiduciary Duty	62	(1)
Misusing Information	62	(1)
Post-Termination Competition	63	(1)
Trade Secrets	64	(1)
Covenants Not to Compete	65	(2)
Pre-empting Business Opportunities	67	(4)
PART III. EXTERNAL MATTERS; RIGHTS OF THIRD PARTIES
Vicarious Tort Liability	71	(45)
Respondeat Superior	71	(5)
Master and Servant	72	(3)
The Origins of Respondeat Superior	75	(1)
The Policy Behind Respondeat Superior	76	(2)
Limitation to Losses Caused by Tortious Behavior	78	(1)
Imputed Contributory Negligence	79	(1)
Direct Tort Liability of an Employer	80	(1)
Liability of the Servant	81	(1)
The Independent Contractor Exception	82	(3)
Limitations to the Independent Contractor Exception	85	(4)
The Inherently Dangerous Activity Exception	86	(1)
The Nondelegable Duty Exception	86	(2)
Negligence in Selection of Contractor	88	(1)
The Borrowed Servant	89	(3)
The Scope of Employment Limitation	92	(8)
Negligence	92	(4)
Intentional Torts	96	(4)
Punitive Damages	100	(1)
Liability to Invitee of Servant	101	(1)
Vicarious Liability for Nonphysical Torts	102	(3)
The Exculpatory Clause	105	(1)
Vicarious Liability by Estoppel	106	(1)
The Joint Enterprise Relationship	107	(3)
The Unincorporated Association Relationship	110	(1)
The Co-principal Doctrine	111	(2)
Procedural Consequences of Vicarious Liability	113	(3)
Contractual Powers of Agents	116	(26)
The Authority of an Agent	116	(1)
Express Authority	116	(5)
The Power of Attorney	118	(2)
The Equal Dignity Rule	120	(1)
Implied Authority	121	(5)
Conceptual Basis of Implied Authority	121	(1)
Incidental Authority	122	(1)
Delegation of authority	123	(3)
Apparent Authority	126	(9)
Estoppel	135	(2)
Inherent Agency Power	137	(5)
The Undisclosed Principal	142	(9)
Definition of Undisclosed Principal	142	(1)
The Rights of an Undisclosed Principal	142	(2)
Limitations on the Rights of the Undisclosed Principal	144	(1)
Liabilities of the Undisclosed Principal	145	(4)
Authorized Transactions	145	(2)
Unauthorized Transactions	147	(2)
Payment and Setoff Issues	149	(2)
Payment by the Other Party	149	(1)
Payment to the Other Party	149	(1)
Setoff	150	(1)
Liability of the Agent to Third Persons	151	(10)
Contractual Liability	151	(6)
The Principle of Direct Representation	152	(1)
Liability When the Principal Is Disclosed: Special Circumstances	153	(1)
Liability When the Principal Is Partially Disclosed	153	(3)
Liability When the Principal Is Unintentionally Undisclosed	156	(1)
The Agent's Warranty of Authority	157	(2)
Harm to the Economic Interests of Others	159	(1)
Liability of the Agent in Tort	160	(1)
The Doctrine of Ratification	161	(13)
The Concept of Ratification	161	(2)
The Affirmance	163	(3)
Uniqueness of the Concept and its Justification	166	(1)
Implied Ratification	167	(2)
Limitations on Ratification	169	(5)
Principal Must Have Been Able Initially to Authorize the Act	169	(2)
The Knowledge Requirement	171	(1)
The No Partial Ratification Rule	172	(1)
Withdrawal by the Other Party	172	(1)
Changed Circumstances	172	(1)
Time limitations	173	(1)
Notice and Notification; Imputed Knowledge	174	(10)
Notification	174	(3)
Reasonable Expectations	175	(1)
When a Notification is Effective	176	(1)
Duration	177	(1)
Imputed Knowledge	177	(7)
Forgotten Knowledge	179	(1)
The Duty Requirement	180	(1)
The Adverse Interest Exception	181	(1)
The Sole Actor Rule	182	(2)
Termination of the Agency Relationship	184	(21)
Termination by Will	184	(2)
Notice of Termination to Third Parties	186	(1)
Termination by Operation of Law	186	(3)
PART IV. THE LAW OF UNINCORPORATED BUSINESS ENTERPRISES
Introduction	189	(16)
The Creation of a Partnership	205	(22)
Creating the Partnership Relationship	205	(4)
The LLP	209	(2)
The Business Role of the Partnership	211	(2)
History	213	(1)
Litigation Over Partnership Status	213	(2)
Partner Liability by Estoppel	215	(2)
The Underlying Theory of Partnership	217	(3)
The Aggregate Theory and the Property Rights of a Partner	220	(3)
When is Property Partnership Property?	223	(2)
Real Property	225	(2)
The Operation of a Partnership	227	(39)
Contractual Powers of Partners	227	(10)
Tort Liability for the Wrongs of Partners	237	(4)
The Nature of a Partner's Liability	241	(1)
Rights and Duties Among Partners	242	(1)
The Fiduciary Duties of Partners	242	(2)
The Duty of Loyalty	244	(5)
Can Fiduciary Duties be Disclaimed?	245	(3)
Leaving the Business	248	(1)
The Duty of Care	249	(1)
The Duty of Full Disclosure	250	(2)
The Duty of Good Faith and Fair Dealing	252	(2)
The Managing Partner	254	(1)
The Right to an Accounting	255	(1)
Indemnity and Contribution Rights of Partners	256	(2)
Suits Among Partners	258	(1)
Suits by and Against a Partnership	259	(1)
The Interest of a Partner; Transfer of the Interest	259	(2)
Claims by Creditors of the Partnership	261	(3)
Rights Against Partnership Assets	261	(1)
Rights Against the Personal Assets of Individual Partners	262	(2)
Claims by Personal Creditors of a Partner Against the Partnership Interest of the Partner	264	(2)
Dissociation of a Partner and Dissolution of a Partnership	266	(32)
Dissolution Under UPA	266	(7)
Dissociation and Dissolution Under RUPA	273	(4)
Termination of Authority; Notice of Dissociation and Dissolution	277	(3)
Termination of Authority	277	(1)
Notice of Dissociation and Dissolution	278	(2)
Continuing the Business	280	(10)
The Buy-Sell Agreement	281	(1)
Continuation Clauses	281	(2)
Liability of an Incoming Partner	283	(1)
Liability of a Withdrawing Partner	284	(1)
Duties of Withdrawing Partner to Former Partners	284	(2)
Creditors' Claims	286	(1)
New Creditors	286	(1)
Existing Creditors	286	(1)
Rights of the Estate of a Deceased Partner When the Business Is Continued	287	(2)
The Treatment of Good Will	289	(1)
Winding Up; Liquidation; Terminating the Business	290	(8)
Winding Up and Liquidation	291	(4)
Termination	295	(1)
Settlement of Accounts	295	(1)
Claims Among Partners: The Losing Business	296	(2)
The Limited Partnership	298	(22)
Introduction	298	(2)
The Uniform Acts	300	(3)
Securities Law, Tax, and Rollup Issues	303	(2)
Organization of the Limited Partnership	305	(2)
Linkage	307	(1)
The General Partner in a Limited Partnership	308	(4)
Fiduciary Duties	308	(2)
Withdrawal and Removal of General Partner	310	(2)
Rights and Obligations of Limited Partners	312	(4)
Exit Rights of Limited Partners	316	(1)
Distributions	316	(1)
Transfers of Interest	317	(1)
Dissolution	318	(2)
The Limited Liability Company	320	(217)
Introduction	320	(3)
Taxation and Securities Law Issues	323	(3)
Uniform Limited Liability Company Act (1995)	326	(1)
Organizational Matters	327	(2)
Piercing the Veil of an LLC	329	(1)
Management	330	(1)
Indemnity and Contribution Rights of Members	331	(1)
Fiduciary Duties of Members	332	(1)
Distributions	333	(2)
Transfer of Interests	335	(1)
Exit privileges	335	(2)
Dissolution	337	(1)
APPENDICES
A. Uniform Partnership Act (1914)	338	(36)
B. Conversion Table	374	(4)
C. Uniform Partnership Act (1997)	378	(72)
D. Uniform Limited Liability Company Act (1995)	450	(87)
Index	537