Agency, Partnership and the Llc in a Nutshell

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ISBN: 9780314234339 | 0314234330
Cover: Paperback
Copyright: 12/1/2000

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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.

Preface

Acknowledgments

vii

Research References

xix

Table of Cases

xxv

Introduction

(2)

PART I. BASIC TERMINOLOGY

Glossary

(9)

The Agency Relationship

(29)

Defining the Agency Relationship

(9)

The Restatement of Agency Definition

(2)

The Elements of an Agency Relationship

(4)

Uses of Agency; Ambiguity of the Word ``Agency''

(3)

The Principal

(1)

Introduction to the Liabilities of a Principal

(2)

The Agent

(1)

Distinguishing the Agency Relationship From Other Relationships

(17)

Agent or Seller

(3)

Agent or Bailee

(1)

Agent or Trustee

(1)

Principal or Creditor

(1)

Agency and the Corporate Board of Directors

(2)

Complex Agency Relationships

(9)

PART II. INTERNAL MATTERS: RIGHTS AND DUTIES BETWEEN PRINCIPAL AND AGENT

Duties of Principal to Agent

(12)

Duty to Pay Compensation

(4)

Duty of Reimbursement, Indemnity, and Exoneration

(2)

Duty of Care

(3)

The Fellow Servant Rule

(1)

Worker's Compensation

(2)

Duty to Deal Fairly and in Good Faith

(2)

Duties of Agent to Principal

(18)

Duty of Good Conduct; Duty to Obey

(1)

Duty to Indemnify Principal for Loss Caused by Misconduct

(2)

Duty to Account

(1)

Duty of Care and Full Disclosure

(3)

Duty of Loyalty

(11)

Loyalty During the Relationship

(1)

Scope of Fiduciary Duty

(1)

Misusing Information

(1)

Post-Termination Competition

(1)

Trade Secrets

(1)

Covenants Not to Compete

(2)

Pre-empting Business Opportunities

(4)

PART III. EXTERNAL MATTERS; RIGHTS OF THIRD PARTIES

Vicarious Tort Liability

(45)

Respondeat Superior

(5)

Master and Servant

(3)

The Origins of Respondeat Superior

(1)

The Policy Behind Respondeat Superior

(2)

Limitation to Losses Caused by Tortious Behavior

(1)

Imputed Contributory Negligence

(1)

Direct Tort Liability of an Employer

(1)

Liability of the Servant

(1)

The Independent Contractor Exception

(3)

Limitations to the Independent Contractor Exception

(4)

The Inherently Dangerous Activity Exception

(1)

The Nondelegable Duty Exception

(2)

Negligence in Selection of Contractor

(1)

The Borrowed Servant

(3)

The Scope of Employment Limitation

(8)

Negligence

(4)

Intentional Torts

(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

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Agency, Partnership and the Llc in a Nutshell

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Table of Contents

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