NY/MBE Complete Bar Exam with
Complete Solutions
Principal liable for agent's torts - ANSWER-- Agency relationship
- Within scope of agency
Agency relationship - ANSWER-- Assent (informal agreement)
- Benefit principal
- Control by the principal (supervise)
Sub-agent and borrowed agent - ANSWER-- No control for both
- No agreement for sub-agent
Independent contractor for tort liability (agency) - ANSWER-- Principal is NL
- Exceptions:
* Ultra-hazadous activity
* Estoppel: hold-out as agent
Scope of agency - ANSWER-- Balancing test
* Whether A intended to benefit P
* Detour or frolic
* Description of the agency
Principal's liability for intentional tort of agent - ANSWER-- Not liable b/c not w/i scope
- Liable if:
* Natural to use force (e.g. guard)
* Authorization by P
* A intended to benefit P
Principal's liability for agent's contract - ANSWER-- Principal is L if authorized
* Acutal, express authorization
* Actual, implied authorization
* Apparent authority
* Ratification
- If P is L, A is NL personally
- A is L for unauthorized K
- 3P may elect either if A did not disclose:
* Identity of P
,* Existence of agency
Actual and express authorization (agency) - ANSWER-- No need to be written
- May be private
- Land agency: requires writing
- Authorization is narrowly construed
- Revocation of authorization:
* by either party
* if principal is dead
* if principal is incapacitated
- Durable power of attorney:
* Not terminate when principal is incapacitated
* Unless otherwise provided in the power
Actual and implied authority in agency - ANSWER-- Necessary to carry out agency
objective
- Customary (e.g. lawyer)
- Prior dealing
Apparent authority in agency - ANSWER-- No actual authorization
- P did something to cloak authority
- 3P reasonably relied
- Reliance not reasonable if dealing with a partner of a partnership for first time
Agent's duty to principal - ANSWER-- Obey instructions
- Duty of care
- Duty of loyalty
* No self-dealing
* Not usurp principal opportunity
* Not secret profit
- Remedy:
* Damage
* Disgorge benefit
Ratification by principal (agency) - ANSWER-- P must know the material aspect of act
- P must accept the benefits
- P must ratify without change
- If change, no ratification
Partnership (requirements) - ANSWER-- 2 or more person
- Carrying out business for profit
,- No writing or registration necessary
- Key: contribution & profit sharing
- Partners have unlimited liability
Parnter's liability for partnership debts - ANSWER-- Partner is each other's agent
- Partner L for:
* Authorized contract
* Tort w/i scope of partnership business
- Estoppel:
* L if stating partnership w/ another
* even no actual partnership exists
Partner's liability for partnership terminates if ... - ANSWER-- All liability that arises until
death and notice
- All acts to wind up existing business
- All new business during wind-up until notice
- No pre-existing debt prior to joining
- Capital contribution upon joining
- All liability after quitting until notice
- Note: the above are time that liability arises
- Notice requirement
* Actual notice to known creditors
* Publication notice to potential creditors
Partner's claim to partnership property interest - ANSWER-- No right in specific
partnership property
* Property under partnership's name
* Requires authorization to dispose
- Right to surplus and profit (transferrable)
- Right to management control (can't transfer)
- No right to salary except winding up
Partner's share in control, profit, and loss - ANSWER-- Equal vote for management
- Without agreement:
* Equal share of profit
* Same share in loss as in profit
Partnership termination - ANSWER-- Dissolves upon material change:
, * Partner dead
* Partner withdraws
- Winding up: time from dissolve to termination
- Termination:
* Pay outside creditors
* Pay inside creditors
* Pay capital contributions
* If anything left, pay surplus to partners
Limited Liability Partnership - ANSWER-- Requires registration stating general partners
- Without registration: general partnership
- Limited partner: limited liability; limited control
- General partner: all liability; all control
Registered LLP - ANSWER-- Only for professional partnership
- Requires registration stating profession
- All partners: limited liability
Limited Liability Company (LLC) - ANSWER-- Requires
* registration of articles of organization
* publish summary for 6 weeks on 2 papers
- Limited tax (through)
- Members may manage through manager
- Members have limited liability
- Share transfer need unanimous consent
- Terminate upon majority vote
Partners' duty to each other - ANSWER-- Fiduciary duty
* No self dealing
* No secret profit
* No usurp of partnership opportunity
- Action of accounting to:
* claim damage
* disgorge unjuct enrichment
Recognition of other state's judgments - ANSWER-- Full faith and credit clause
* Court has jurisdiction
* Judgment is final
* Judgment is on merits
- Final: not modifiable (future support)
Complete Solutions
Principal liable for agent's torts - ANSWER-- Agency relationship
- Within scope of agency
Agency relationship - ANSWER-- Assent (informal agreement)
- Benefit principal
- Control by the principal (supervise)
Sub-agent and borrowed agent - ANSWER-- No control for both
- No agreement for sub-agent
Independent contractor for tort liability (agency) - ANSWER-- Principal is NL
- Exceptions:
* Ultra-hazadous activity
* Estoppel: hold-out as agent
Scope of agency - ANSWER-- Balancing test
* Whether A intended to benefit P
* Detour or frolic
* Description of the agency
Principal's liability for intentional tort of agent - ANSWER-- Not liable b/c not w/i scope
- Liable if:
* Natural to use force (e.g. guard)
* Authorization by P
* A intended to benefit P
Principal's liability for agent's contract - ANSWER-- Principal is L if authorized
* Acutal, express authorization
* Actual, implied authorization
* Apparent authority
* Ratification
- If P is L, A is NL personally
- A is L for unauthorized K
- 3P may elect either if A did not disclose:
* Identity of P
,* Existence of agency
Actual and express authorization (agency) - ANSWER-- No need to be written
- May be private
- Land agency: requires writing
- Authorization is narrowly construed
- Revocation of authorization:
* by either party
* if principal is dead
* if principal is incapacitated
- Durable power of attorney:
* Not terminate when principal is incapacitated
* Unless otherwise provided in the power
Actual and implied authority in agency - ANSWER-- Necessary to carry out agency
objective
- Customary (e.g. lawyer)
- Prior dealing
Apparent authority in agency - ANSWER-- No actual authorization
- P did something to cloak authority
- 3P reasonably relied
- Reliance not reasonable if dealing with a partner of a partnership for first time
Agent's duty to principal - ANSWER-- Obey instructions
- Duty of care
- Duty of loyalty
* No self-dealing
* Not usurp principal opportunity
* Not secret profit
- Remedy:
* Damage
* Disgorge benefit
Ratification by principal (agency) - ANSWER-- P must know the material aspect of act
- P must accept the benefits
- P must ratify without change
- If change, no ratification
Partnership (requirements) - ANSWER-- 2 or more person
- Carrying out business for profit
,- No writing or registration necessary
- Key: contribution & profit sharing
- Partners have unlimited liability
Parnter's liability for partnership debts - ANSWER-- Partner is each other's agent
- Partner L for:
* Authorized contract
* Tort w/i scope of partnership business
- Estoppel:
* L if stating partnership w/ another
* even no actual partnership exists
Partner's liability for partnership terminates if ... - ANSWER-- All liability that arises until
death and notice
- All acts to wind up existing business
- All new business during wind-up until notice
- No pre-existing debt prior to joining
- Capital contribution upon joining
- All liability after quitting until notice
- Note: the above are time that liability arises
- Notice requirement
* Actual notice to known creditors
* Publication notice to potential creditors
Partner's claim to partnership property interest - ANSWER-- No right in specific
partnership property
* Property under partnership's name
* Requires authorization to dispose
- Right to surplus and profit (transferrable)
- Right to management control (can't transfer)
- No right to salary except winding up
Partner's share in control, profit, and loss - ANSWER-- Equal vote for management
- Without agreement:
* Equal share of profit
* Same share in loss as in profit
Partnership termination - ANSWER-- Dissolves upon material change:
, * Partner dead
* Partner withdraws
- Winding up: time from dissolve to termination
- Termination:
* Pay outside creditors
* Pay inside creditors
* Pay capital contributions
* If anything left, pay surplus to partners
Limited Liability Partnership - ANSWER-- Requires registration stating general partners
- Without registration: general partnership
- Limited partner: limited liability; limited control
- General partner: all liability; all control
Registered LLP - ANSWER-- Only for professional partnership
- Requires registration stating profession
- All partners: limited liability
Limited Liability Company (LLC) - ANSWER-- Requires
* registration of articles of organization
* publish summary for 6 weeks on 2 papers
- Limited tax (through)
- Members may manage through manager
- Members have limited liability
- Share transfer need unanimous consent
- Terminate upon majority vote
Partners' duty to each other - ANSWER-- Fiduciary duty
* No self dealing
* No secret profit
* No usurp of partnership opportunity
- Action of accounting to:
* claim damage
* disgorge unjuct enrichment
Recognition of other state's judgments - ANSWER-- Full faith and credit clause
* Court has jurisdiction
* Judgment is final
* Judgment is on merits
- Final: not modifiable (future support)
