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2. Agency
2.1.
(f)
B.
C.
Manifestation of consent by
(1)
the to have act on his behalf
(a)
s manifestation has to reach somehow.
E.g. through intermediary.
(2)
the to act on behalf of the
(a)
doesnt have to be aware that consented.
(3)
On Behalf used to distinguish between other
relationships. Simply benefitting another is insufficient.
must be acting primarily for the benefit of the .
(4)
Consent is not the same as K.
(a)
No consideration/payment necessary e.g.
gratuitous agents.
Objectively Determined by all the facts and circumstances
(1)
Objective Based on RPP would perceive of the
manifestations at the same time, under the same facts &
circumstances. Only look to outward manifestations, not
subjective thoughts.
(2)
Can be oral, written, inferred by silence or conduct
(a)
Silence- e.g. can manifest consent by
beginning the required task
(3)
Can be a reasonable misinterpretation too
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D.
E.
F.
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2.2.
Burden of Proof
(1)
If a seeks to impose liability on an alleged on a K made
by an alleged then must prove the relationship exists.
C.
D.
(3)
(4)
B.
C.
(5)
Determining an IC vs. Employee Many factors in Uber.
Liability for the Torts of Servants
(1)
Master is liable for torts committed by a servant within the
scope of his employment
(2)
Vicarious Liability/Respondeat Superior An employer is
liable for all torts committed by an employee acting within
the scope of his/her employment. Imposes strict liability on
employer.
(a)
Policy Servant may be judgment proof and
have no insurance. Master is in the best position
to mitigate and avoid risks/injuries. This is just
an incidental cost of doing business. The
business profits from hiring employees and
injuries by employees always happen. Because
business profits it is justified that the business
instead of the pltf. Bears the costs. Plus business
is better able to absorb costs and distribute them
through prices, rates, or insurance to the
public/society. Plus this makes employers more
selective in hiring, instructing, and supervising
servants and to take precautions to see that the
enterprise is conducted safely.
(b)
Scope of employment R3d 7.07(2): An
employee acts within the scope of employment
when performing work assigned by the
employer or engaging in a course of conduct
subject to the employers control. An employees
act is not within the scope of employment when
it occurs within an independent course of
conduct not intended by the employee to serve
any purpose of the employer.
(i)
R2d: If but only if (a) it is of the
kind he is employed to perform; (b)
it occurs substantially within the
authorized time and space limits; (c)
it is actuated, at least in part, by a
purpose to serve the master, and (d)
if force is intentionally used by the
servant against another, the use of
force is not unexpectable by the
master
Liability for the Torts of Independent Contractors
(1)
Respondeat Superior does not apply to independent
contractors. In certain situations, an employee can be held
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D.
liable for torts of an IC, but these cases are based on the
employers own negligence or as a matter of public policy.
[Humble Oil, Hoover]
(a)
Negligence in selecting an IC, or if the IC is to
perform a highly dangerous act (e.g. blasting)
(2)
Franchise Agreements & Agency Generally Franchiser
supplies brand Id/identity & controls distribution of
goods/services through a K that regulates the activities of
franchisee to achieve standardization. Franchisee has the right
to profit and bear risk of loss from operation of franchise.
(a)
If the agreement gives the franchisee too much
control over the day-to-day operations of the
business, agency relationship arises &
franchisor may be liable for torts of the
franchisee. [Humble Oil, Hoover]
Oconnor v. Uber Factors to consider in determining whether someone is an
employee or an independent contractor. No one factor is decisive. Labels
placed on the relationship by the parties is informative but not dispositive.
(1)
The K w/ drivers says they are independent contractors. Uber
says it is a tech company not a transportation company.
(2)
Performing work and labor for another is prima facie
evidence of employment. Such person is presumed a servant
absent contrary ev. (burden shifts to employer) [Uber says it
is a tech co. only providing platform. But drivers provide an
indispensable service & uber cannot survive w/o them]
(a)
Most significant factor is right to control work
details. [More=E]
(b)
Doesnt need to extent to all possible details.
Instead, does the entity retain all necessary
control over the workers performance. Freedom
is allowed.
(c)
Not how much control hirer exercises, but how
much control he retains the right to exercise.
(d)
Right to discharge at will without cause b/c this
right gives him the means to control s
activities. [E]
(e)
The one performing service is in a distinct
occupation or business [C]
(f)
Kind of occupation in that locality, work is
typically done under direction of [E] or by
specialist w/o supervision [C]
(g)
Skill required in particular occupation [less skill
= E]
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E.
(3)
(4)
(5)
(6)
(7)
B.
Termination at will
(1)
Termination is always at will because these relationships are
grounded in consent. Any party can terminate the relationship
Duties During & After Termination of Agency Grabbing & Leaving:
Post-termination competition w/ a former is permitted, but the former is
barred from disclosure of trade secrets of other confidential information
obtained during his employment.
(1)
Town & Country House v. Newbery An employee can owe
a fiduciary duty to their employer for the employers trade
secrets after their service has been terminated. s cannot
profit from a s trade secrets even after employment ends.
[8.05 & 8.06 R3d]
(a)
Newbery worked for T&C and he broke
away & started a competing business. sued
for unfair competition.
(b)
Held: List of customers is a trade secret. Even
where a solicitor of business does not operate
fraudulently under the banner of his former
employer, he still may not solicit the latters
customers who are not openly engaged in
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(c)
3. Partnerships
3.1.
Introduction
A.
Def of General Partnership: Association of 2 or more persons to carry on a
business as co-owners for profit. [UPA 6]. Lawful partnerships cannot be
formed for nonprofit purposes.
B.
Key features of partnership
(1)
All partners are liable as principals
(2)
All partners are general agents of the partnership all can
bind the partnership/ each partner to third parties.
(3)
Liability All general partners are jointly and severally
liable for the debts of the business even when the partner does
not participate in the act that causes the partnership to become
liable [UPA 15] s can sue any or all of the partners for
repayment of a loan
(4)
Management All partners share equally in control, unless
they agree otherwise through a K. But internal agreements
about decision making are not binding on outsiders who are
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C.
3.2.
A.
B.
C.
D.
Representation
(1)
UPA 9(1): Every partner is an agent of the partnership for
the purpose of its business, and the act of every partner... for
apparently carrying on in the usual way the business of the
partnership of which he is a member binds the partnership,
unless the partner so acting has in fact no authority to act for
the partnership in the particular matter, and the person with
whom he is dealing has knowledge of the fact that he has no
such authority.
(2)
UPA 9(2): An act of a partner which is not apparently for the
carrying on of the business of the partnership in the usual way
does not bind the partnership unless authorized by the other
partners.
C.
Nabisco v. Stroud One company cannot escape responsibility by notifying a
creditor. The acts of a partner, if performed on behalf of the partnership and
within the scope of its business are binding upon all co-partners. All partners
are jointly and severally liable for all obligations incurred on behalf of the
partnership. If a majority of the partners disapprove of a transaction before it is
entered into then they may escape liability for whatever obligations the
transaction ultimately incurs.
(1)
and freeman created GP to sell groceries under one name.
partnership bought bread from Nabisco P. Stroud told P that
he wouldnt be responsible for any more bread which P sold
to partnership. Freeman requested and P sent another
shipment. On the day it arrived the partnership was dissolved
(2)
If a majority of the partners disapprove of a transaction before
it is entered into then they may escape liability for whatever
obligations the transaction ultimately incurs.
(a)
But Freeman and D were equal partners, neither
possessed the power to exercise a majority veto
over the acts of the other.
(3)
Note: had D dissolved the partnership and given P notice
prior to the order by freeman, D would not have been
personally liable for the partnership debt to P.
3.5.
Statutory Dissolution of Partnership at Will
A.
Introduction:
(1)
(2)
(3)
B.
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(iii)
(e)
(f)
(g)
C.
D.
Illegality
(i)
Partnership Dissolution
(1)
UPA 37: Unless otherwise agreed the partners... [have] the
right to wind up the partnership affairs, provided, however,
that any partner... may obtain winding up by the court.
(2)
UPA 38(1): When dissolution is caused in any way... each
partner, as against his co-partners and all persons claiming
through them... may have the partnership property applied to
discharge its liabilities, and the surplus applied to pay in cash
the net amount owing to the respective partners.
Resolution and Distribution of Assets
(1)
Distribution of assets
(a)
Partnership debts all debts paid first
(b)
Capital accounts then amounts are applied to
pay the parties their capital accounts (capital
contributions plus accumulated earnings and
less accumulated losses)
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3.6.
3.7.
A.
A.
Page v. Page
Agency Conflicts Among Co-Owners
Meinhard v. Salmon: Joint ventures owe to one another, while their enterprise
continues, the duty of finest loyalty, a standard of behavior most sensitive.
(1)
P and D were partners in a lease on a hotel, but before the
lease expired, D alone, without Ps knowledge, agreed to lease
the property and an adjacent property.
(2)
There is a broad fiduciary duty between partners.
the unique feature is their symmetry; each partner is, roughly
speaking, both a principal and an agent, both a trustee and a
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3.8.
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