February 2020 Edition - SmartBarPrep · 2019-11-27 · MPT will test the same or similar tasks that...
Transcript of February 2020 Edition - SmartBarPrep · 2019-11-27 · MPT will test the same or similar tasks that...
© 2020 SmartBarPrep | www.smartbarprep.com
The SmartBarPrep MPT Frequency Analysis (hereinafter “Study Guide”) is designed to assist you in studying for the Multistate Performance Test (MPT) and the Uniform Bar Exam (UBE). It was NOT designed to be a prediction of what will be asked on the upcoming bar exam or any future examinations. Although many of the same tasks and/or assignments (“tasks”) have been repeated on past MPT questions, there is NO GUARANTEE that any future MPT will test the same or similar tasks that have appeared on past exams. SmartBarPrep makes NO WARRANTIES or GUARANTEES as to what legal tasks the National Conference of Bar Examiners and/or state bar examiners will test on the upcoming bar exam or any future examinations.
While we endeavor to provide accurate, complete, and up-to-date information in this Study Guide, the accuracy, completeness, adequacy, or currency of the content is not guaranteed. Your use of any content in this Study Guide or materials linked from our website (www.smartbarprep.com) is at your own risk.
Although SmartBarPrep does feel that using this Study Guide will help you on the MPT, WE MAKE NO GUARANTEE THAT YOU WILL PASS THE UNIFORM BAR EXAM (UBE), MULTISTATE PERFORMANCE TEST (MPT), OR ANY OTHER STATE’S BAR EXAM.
Under no circumstances shall we be liable for any losses or damages whatsoever, including direct, indirect, incidental, and consequential damages, resulting from the use of this Study Guide, whether based on contract, tort, or any other legal theory. This Study Guide and the materials contained herein are provided “as is,” and there are no representations or warranties, express or implied, with respect to the use of this Study Guide, or its contents. WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO ITS USE, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
The content of this Study Guide is not intended to and does not constitute legal advice, nor is it intended to establish any attorney-client relationship.
Reading beyond this point constitutes your acceptance of the terms above.
DISCLAIMER
We would love to hear from you.
If you have any questions, comments, or suggestions please feel free to email us at any time.
NCBE Trademark Notice UBE®, MBE®, MEE®, MPT®, MPRE®, and NCBE® are trademarks of the National Conference of Bar Examiners.
Smart study tools that simplify and optimize your bar exam prep by helping you learn faster, practice more effectively, and priori-tize the highly tested topics & rules.
1. Prioritize
Color-coded Priority Outlines, Attack Sheets, & Frequency Charts to streamline the mountain of information you need to know for the bar exam.
2. Optimize
Smart flashcards that use cognitive science & adaptive learning to acceler-ate the learning experience. Printable flashcards are also available.
3. Practice
Real questions licensed from the bar ex-aminers along with our smart strategy to practice more effectively for the MBE, MEE, and MPT.
Our Proven 3-Step Method to Study Smarter
S T U D Y S M A R T E RO P T I M I Z E Y O U R B A R P R E P
visit www.SmartBarPrep.com to learn more
© 2020 SmartBarPrep | www.smartbarprep.com
Table of Contents
MPT Frequency ChartMPT Frequency ChartMPT Frequency ChartMPT Frequency Chart 1111
Tasks Appearing on Past Multistate Performance Tests (MPT’s)
MPT Frequency TableMPT Frequency TableMPT Frequency TableMPT Frequency Table 2222
Number of Times Task Appeared out of Total Number of MPT's
Analysis of Past MPT AssignmentsAnalysis of Past MPT AssignmentsAnalysis of Past MPT AssignmentsAnalysis of Past MPT Assignments 3333
Breakdown of Tasks / Assignments Appearing on Past Multistate Performance Tests (MPT’s)
© 2020 SmartBarPrep | www.smartbarprep.com
1
Tasks Tasks Tasks Tasks AppearingAppearingAppearingAppearing on Paston Paston Paston Past Multistate Multistate Multistate Multistate PerformancePerformancePerformancePerformance Tests (MPT’s)Tests (MPT’s)Tests (MPT’s)Tests (MPT’s)
9
12
24
46
9
2
1
1
2
1
3
0 5 10 15 20 25 30 35 40 45
Persuasive Memorandum
Persuasive Letter
Persuasive Brief
Objective Memorandum
Objective Letter
Draft Will
Draft Interrogatories
Draft Findings of Fact & Conclusions of Law
Draft Closing Argument
Draft Causes of Action
Draft Agreement/Contract
# of Times Tested
Number of Times Tasks Appeared on Past ExamsNumber of Times Tasks Appeared on Past ExamsNumber of Times Tasks Appeared on Past ExamsNumber of Times Tasks Appeared on Past Exams
© 2020 SmartBarPrep | www.smartbarprep.com
2
Number of Times Task AppearedNumber of Times Task AppearedNumber of Times Task AppearedNumber of Times Task Appeared out of Total Number of MPT'sout of Total Number of MPT'sout of Total Number of MPT'sout of Total Number of MPT's
Past MPT Tasks # of Times Tested % out of Total Exams
Draft Agreement/Contract 3 6.5%
Draft Causes of Action 1 2.2%
Draft Closing Argument 2 4.3%
Draft Findings of Fact & Conclusions of Law 1 2.2%
Draft Interrogatories 1 2.2%
Draft Will 2 4.3%
Objective Letter 9 19.6%
Objective Memorandum 46 100.0%
Persuasive Brief 24 52.2%
Persuasive Letter 12 26.1%
Persuasive Memorandum 9 19.6%
© 2020 SmartBarPrep | www.smartbarprep.com
3
Breakdown of Breakdown of Breakdown of Breakdown of Tasks Tasks Tasks Tasks / / / / AssignmentsAssignmentsAssignmentsAssignments Appearing on PastAppearing on PastAppearing on PastAppearing on Past
Multistate Performance TestsMultistate Performance TestsMultistate Performance TestsMultistate Performance Tests ((((MPT’sMPT’sMPT’sMPT’s))))
Exam MPT Name Task / Assignment
July 2019 (MPT-1) American Electric v. Wuhan Precision
Parts Objective Memorandum
July 2019 (MPT-2) Estate of Carl Rucker Objective Memorandum
Feb 2019 (MPT-1) State of Franklin Dept. of Children &
Families v. Little Tots Child Care Center Persuasive Memorandum
Feb 2019 (MPT-2) In re Remick Objective Memorandum
July 2018 (MPT-1) State of Franklin v. Hale Persuasive Brief
July 2018 (MPT-2) Rugby Owners & Players Association Draft Agreement/Contract1
Feb 2018 (MPT-1) State of Franklin v. Clegane Persuasive Brief
Feb 2018 (MPT-2) In re Hastings Objective Memorandum
† A small number of MPT’s have tested more than one type of task in the performance test assignment. 1 Re-draft Articles of Association for Joint Venture + Explain Reasoning.
Total Exams Analyzed 46
Total # of MPT’s 105
Total # Tasks Previously Tested† 110
SmartBarPrep Analysis of Past MPT Assignments
© 2020 SmartBarPrep | www.smartbarprep.com
4
Exam MPT Name Task / Assignment
July 2017 (MPT-1) Peek et al. v. Doris Stern and Allied
Behavioral Health Services Persuasive Brief
July 2017 (MPT-2) In re Zimmer Farm Objective Memorandum
Feb 2017 (MPT-1) In re Ace Chemical Objective Memorandum
Feb 2017 (MPT-2) In re Guardianship of King Draft Findings of Fact & Conclusions
of Law2
July 2016 (MPT-1) In re Whirley Objective Memorandum
July 2016 (MPT-2) Nash v. Franklin Department of Revenue Persuasive Brief
Feb 2016 (MPT-1) In re Anderson Objective Memorandum
Feb 2016 (MPT-2) Miller v. Trapp Persuasive Letter + Objective
Memorandum3
July 2015 (MPT-1) In re Bryan Carr Objective Letter4
July 2015 (MPT-2) In re Franklin Aces Objective Letter5
Feb 2015 (MPT-1) In re Harrison Objective Memorandum
Feb 2015 (MPT-2) In re Community General Hospital Persuasive Letter6
July 2014 (MPT-1) In re Kay Struckman Objective Memorandum
July 2014 (MPT-2) In re Linda Duram Persuasive Letter7
Feb 2014 (MPT-1) In re Rowan Persuasive Brief
Feb 2014 (MPT-2) In re Peterson Engineering Consultants Objective Memorandum
July 2013 (MPT-1) Monroe v. Franklin Flags Amusement
Park Persuasive Brief
July 2013 (MPT-2) Palindrome Recording Contract Draft Agreement/Contract8
Feb 2013 (MPT-1) In re Wendy Martel Objective Letter9
Feb 2013 (MPT-2) In re Guardianship of Will Fox Persuasive Brief
July 2012 (MPT-1) State of Franklin v. Soper Objective Memorandum10
July 2012 (MPT-2) Ashton v. Indigo Construction Co. Persuasive Brief
2 Instructions state to draft assignment in a persuasive way, but without being explicitly argumentative. 3 Two Tasks Assigned: Persuasive Demand Letter + Short Objective Memorandum. 4 Opinion Letter to Client. 5 Opinion Letter to Client. 6 Draft Letter Responding to Purported HIPAA violations. 7 Persuasive Demand Letter. 8 Re-draft Provisions of a Rock Band's Recording Contract + Explain Reasoning/Complications. 9 Opinion Letter to Client. 10 Objective Bench Memorandum.
SmartBarPrep Analysis of Past MPT Assignments
© 2020 SmartBarPrep | www.smartbarprep.com
5
Exam MPT Name Task / Assignment
Feb 2012 (MPT-1) Franklin Resale Royalties Legislation Persuasive Memorandum11
Feb 2012 (MPT-2) In re WPE Property Development, Inc. Objective Letter12
July 2011 (MPT-1) In re Field Hogs, Inc. Objective Memorandum + Draft
Agreement/Contract13
July 2011 (MPT-2) In re Social Networking Inquiry Persuasive Memorandum
Feb 2011 (MPT-1) Butler v. Hill Objective Memorandum + Draft
Closing Argument14
Feb 2011 (MPT-2) In re Magnolia County Objective Memorandum
July 2010 (MPT-1) In re Hammond Persuasive Brief
July 2010 (MPT-2) In re City of Ontario Objective Memorandum
Feb 2010 (MPT-1) State of Franklin v. McLain Persuasive Brief
Feb 2010 (MPT-2) Logan v. Rios Objective Memorandum15
July 2009 (MPT-1) Jackson v. Franklin Sports Gazette, Inc. Objective Memorandum
July 2009 (MPT-2) In re City of Bluewater Persuasive Letter16
Feb 2009 (MPT-1) Phoenix Corporation v. Biogenesis, Inc. Objective Memorandum
Feb 2009 (MPT-2) Ronald v. Department of Motor Vehicles Persuasive Memorandum
July 2008 (MPT-1) Bohmer v. Bohmer Objective Memorandum
July 2008 (MPT-2) Williams v. A-1 Automotive Center Objective Memorandum + Draft
Causes of Action17
Feb 2008 (MPT-1) In re Velocity Park Objective Memorandum
Feb 2008 (MPT-2) In re Lisa Peel Objective Memorandum
July 2007 (MPT-1) Acme Resources, Inc. v. Robert Black
Hawk et al. Persuasive Brief
July 2007 (MPT-2) In re Mistover Acres LLC Objective Memorandum
Feb 2007 (MPT-1) In re Tamara Shea Objective Memorandum
Feb 2007 (MPT-2) Glickman v. Phoenix Cycles, Inc. Persuasive Letter18
11 Persuasive "Leave-Behind" Document. 12 Opinion Letter to Client. 13 Two Tasks: Draft Objective Memorandum + Re-draft Arbitration Clause. 14 Two Tasks: Draft Objective Memorandum + Persuasive Closing Argument. 15 Early Dispute Resolution (EDR) Statement to EDR Judge. Instructions stated to candidly discuss the strengths & weaknesses of the case. 16 Response to Demand Letter. 17 Two Tasks: Draft Objective Memorandum + Draft Causes of Action for Fraud. 18 Follow-up Letter to Opposing Counsel Persuasively Setting Forth Basis of Client's Claim and Why No Exceptions Apply.
SmartBarPrep Analysis of Past MPT Assignments
© 2020 SmartBarPrep | www.smartbarprep.com
6
Exam MPT Name Task / Assignment
July 2006 (MPT-1) Larson Real Estate File Objective Memorandum
July 2006 (MPT-2) Parker v. Essex Productions Persuasive Memorandum
Feb 2006 (MPT-1) Harris v. CBL Objective Memorandum
Feb 2006 (MPT-2) State of Franklin v. Butler Persuasive Brief
July 2005 (MPT-1) In re Clarke Corporation Objective Letter19
July 2005 (MPT-2) In re Brigham Persuasive Letter20
Feb 2005 (MPT-1) In re Rose Kingsley Objective Memorandum
Feb 2005 (MPT-2) Reynolds v. Preferred Medical Providers Persuasive Letter21
Feb 2005 (MPT-3) In re Barnett Objective Memorandum
July 2004 (MPT-1) In re Marian Bonner Persuasive Letter22
July 2004 (MPT-2) Graham Realty, Inc. v. Brenda Chapin Objective Memorandum23
July 2004 (MPT-3) Wells v. Wells Persuasive Brief
Feb 2004 (MPT-1) State v. Miller Persuasive Brief
Feb 2004 (MPT-2) Rivera v. Baldisari Amusement Parks,
Inc. Objective Memorandum
Feb 2004 (MPT-3) Bennett v. Sands Construction Company Objective Memorandum
July 2003 (MPT-1) Vargas v. Monte Persuasive Brief
July 2003 (MPT-2) In re Franklin Forum Objective Memorandum
July 2003 (MPT-3) Meerstein v. EasyGO Airlines Objective Memorandum
Feb 2003 (MPT-1) In re Suarez Persuasive Letter24
Feb 2003 (MPT-2) In re Cora Ames Objective Memorandum
Feb 2003 (MPT-3) Arden Industries, Inc. v. Freight
Forwarders, Inc. Persuasive Brief
July 2002 (MPT-1) State v. Tweedy Persuasive Memorandum
July 2002 (MPT-2) In re Al Merton Draft Will25
July 2002 (MPT-3) GVP Non-Disclosure Agreement Objective Letter26
19 Opinion Letter to Client. 20 Draft Persuasive Letter that will Serve as a Brief in Support of an Application to the Court. 21 Letter to Opposing Counsel Rejecting Demand to Arbitrate. 22 Letter to Opposing Counsel. 23 Case Planning Memo. 24 Letter to Opposing Counsel. 25 Draft Will Provisions + Explain Reasoning. 26 Opinion Letter to Client.
SmartBarPrep Analysis of Past MPT Assignments
© 2020 SmartBarPrep | www.smartbarprep.com
7
Exam MPT Name Task / Assignment
Feb 2002 (MPT-1) Franklin Construction Company Objective Letter27
Feb 2002 (MPT-2) In re Madert Persuasive Letter28
Feb 2002 (MPT-3) Whitford v. Newberry Middle School
District Draft Closing Argument29
July 2001 (MPT-1) State v. White Persuasive Brief30
July 2001 (MPT-2) True Values Television Network, Inc. Objective Memorandum
July 2001 (MPT-3) Petition of Mona St. John Persuasive Brief31
Feb 2001 (MPT-1) State v. Palm Persuasive Brief
Feb 2001 (MPT-2) Steinberg & Son, Inc. v. Wye Objective Memorandum
Feb 2001 (MPT-3) Consumer Protection Division v. Bernhard's Appliances, Inc.
Persuasive Brief
July 2000 (MPT-1) March v. Betts Persuasive Letter32
July 2000 (MPT-2) Pauling v. Del-Rey Wood Products Co. Draft Interrogatories33
July 2000 (MPT-3) Franklin Asbestos Handling Regulations Persuasive Memorandum + Objective Memorandum34
Feb 2000 (MPT-1) In re Application Specialists, Inc. Objective Memorandum
Feb 2000 (MPT-2) Proffet v. Dinsdale Instruments, Inc. Persuasive Brief
Feb 2000 (MPT-3) In re Lewis T. Travin Persuasive Memorandum
July 1999 (MPT-1) In re Steven Wallace Objective Memorandum
July 1999 (MPT-2) Kantor v. Bellows Persuasive Letter35
July 1999 (MPT-3) In re Emily Dunn Draft Will36
Feb 1999 (MPT-1) Meley v. Boundless Vacations, Inc. Objective Memorandum
Feb 1999 (MPT-2) In re Sylvester Parks Persuasive Memorandum
Feb 1999 (MPT-3) In re Marina Martin Objective Memorandum
July 1998 (MPT-1) State v. Robert Baker Objective Memorandum
27 Opinion Letter to Client. 28 Letter to Opposing Counsel. 29 Draft Closing Argument to the Court with a Persuasive & Compelling Presentation. 30 Brief in Support of a Motion to be heard by the Judge in camera. 31 Legal Argument Section of a Petition for Clemency. 32 Persuasive Mediation Statement. 33 Draft Interrogatories + Short Explanation of How Each Will Serve Intended Purpose. 34 Two Tasks: Write a Memo that States the "Best Case" for Non-Preemption of Regulatory Scheme + Discuss if Each Provision can Survive a Preemption Challenge. 35 Letter to Opposing Counsel. 36 Draft Will Provisions + Explain Reasoning.
SmartBarPrep Analysis of Past MPT Assignments
© 2020 SmartBarPrep | www.smartbarprep.com
8
Exam MPT Name Task / Assignment
July 1998 (MPT-2) In re Laser Lens, Inc. Objective Letter37
Feb 1998 (MPT-1) Piccolo v. Dobbs Persuasive Brief
Feb 1998 (MPT-2) In re Gardenton Board of Education Objective Memorandum
July 1997 (MPT-1) In re Kiddie-Gym Systems, Inc. Objective Letter38
July 1997 (MPT-2) State v. Devine Persuasive Brief
Feb 1997 (MPT-1) Alexander v. BTI and Bell Persuasive Brief
Feb 1997 (MPT-2) In re Hayworth and Wexler Objective Memorandum
37 Opinion Letter to Client. 38 Opinion Letter to Client.
Priority Outlines
Color-coded outlines to streamline the mountain of information you need to know for the bar exam. Includes priority ratings, each rule’s frequency, list of exams tested, & model rule statements.
Smart Flashcards
Smart flashcards that use cognitive science & adap-tive learning to accelerate the learning experience. Printable flashcards are also available.
Smart Guides
Guides that simplify and explain how to prepare for the bar exam, with tips, strategies, & step-by-step approaches to maximize your score.
Smart Sheets
Concise breakdowns of the law tested (2-9 pages per subject) – with a color coded priority rating (high/med/low) – to focus on the highly tested MBE & MEE rules.
Frequency Charts
Charts that show the fre-quency of items tested on the MBE, MEE, and MPT sections – so you can see what’s highly tested and prioritize your studying.
Real questions licensed from the bar examiners along with our smart strategy to practice more effectively for the MBE, MEE, and MPT.
Real Practice Questions
OUR STUDY TOOLSO P T I M I Z E Y O U R B A R P R E P
visit www.SmartBarPrep.com to learn more
© 2020 SmartBarPrep.com 1
AGENCY01
A. Agency Relationships
■ Creation of Agency Relationship
• An agent is a person or entity that acts on behalf of another – the principal. Agency is a fiduciary relationship, and exists if there is: (1) assent (a formal or informal agreement between the principal and the agent); (2) benefit (the agent’s conduct on behalf of the principal primarily benefits the principal); AND (3) control (the principal has the right to control the agent by being able to supervise the agent’s performance – the degree of control does not need to be significant). Whether an agency relationship exists depends upon the existence of the required elements above (the characterization of the relationship by the parties is irrelevant).
■ Types of Agency Relationships
• There are three types of agency relationships. A universal agent has broad authority to act on behalf of the principal, and is authorized to perform ALL acts the principal is allowed to perform. A general agent normally has authority to conduct a series of transactions over a period of time for a particular purpose, business, or operation (i.e. a manager of a restaurant). A special agent has limited authority to conduct: (a) a specific act/transaction; OR (b) certain actions over a specified period of time.
■ Termination of Agency Relationship
• An agency relationship terminates and the agent no longer has authority to act if: (a) the principal or the agent manifests to the other that the relationship is terminated; (b) a specified term of the agent’s authority expired; (c) upon operation of law by the death of the principal or agent; OR (d) upon operation of law by the incapacity of the principal or agent (except where a durable power of attorney exists).
o Under the common law, an agent’s authority is revoked upon death, regardless of whether the third party has notice of the death. In some states, the authority is not revoked until the third party is notified of the principal’s death.
• Apparent authority continues until the principal communicates the termination to third parties (even if the agency relationship was actually terminated). A principal may communicate termination by notifying third parties directly, making a public announcement, or by recovering from the agent any items indicating authority.
4 of 50 Exams
HIGHFeb 2009, Essay 1Feb 2006, Essay 2July 2004, Essay 5Feb 1996, Essay 5
1 of 50 Exams
LOW Feb 2005, Essay 7
3 of 50 Exams
MEDJuly 2002, Essay 6July 2001, Essay 6July 1996, Essay 2
MEE TIP The subjects of Agency and Partnerships are normally tested together on essay questions.
MEE TIP The rule for Creation of an Agency Relationship is normally tested along with such topics as authority, undisclosed principal, or employee vs. independent contractor.
© 2020 SmartBarPrep.com 151
MEE TIP: When & How to Discuss Relevance
EVIDENCE09
MEE TIP All evidence essay questions must be answered according to the Federal Rules of Evidence.
A. Probative Value
■ Probative Value: Relevancy & Rule 403 Exclusions
• Relevancy: To be admissible, evidence must be relevant. Evidence is relevant if: (1) it has any tendency to make a fact more or less probable than it would be without the evidence; AND (2) the fact is of consequence in determining the action. Relevant evidence is admissible unless another rule or exclusion provides otherwise.
• Rule 403 Exclusions: Under FRE 403, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of: (a) unfair prejudice; (b) confusing the issues; (c) misleading the jury; (d) undue delay; (e) wasting time; OR (f) being needlessly cumulative. Evidence is unfairly prejudicial when the evidence is (1) unnecessary, AND (2) might cause the jury to improperly sympathize or dislike a party. As an alternative to excluding evidence completely under Rule 403, the court could limit the unfair prejudice to a party by limiting the scope of evidence or examination to specific topics.
If a question asks whether certain evidence is “admissible”, be sure to discuss Relevance. In recent essays, relevancy has been discussed briefly for each item even though relevance wasn’t the primary rule tested. For example, on the July 2018 MEE (Essay 5), Relevance was briefly discussed at the beginning of Point One, Two, Three(a), and Four.
For this type of brief analysis: First, state “Evidence is relevant if it has any tendency to make a fact more probable or less probable than it would be without the evidence.” Then, write one sentence on why the evidence is relevant. Remember to state the rule and analysis very briefly (unless a greater analysis of Relevance and the Rule 403 exclusions is warranted).
B. Policy Exclusions
■ Subsequent Remedial Measures
• Subsequent remedial measures are measures taken that would have made an earlier injury or harm less likely to occur. Under the FRE, evidence of subsequent remedial measures is NOT admissible to prove: (a) negligence; (b) culpable conduct; (c) a defect in a product or design; OR (d) a need for a warning or instruction.
7 of 25 Exams
HIGHJuly 2018, Essay 5 July 2017, Essay 5Feb 2016, Essay 2July 2014, Essay 5Feb 2013, Essay 7Feb 2012, Essay 1Feb 2010, Essay 7
1 of 25 Exams
MEDFeb 2012, Essay 1
FRE = Federal Rules of Evidence
© 2020 SmartBarPrep | www.smartbarprep.com 1
AGENCY 01
A. Agency Relationships
Creation of Agency Relationship
Definition – Agency is a fiduciary relationship, where a
person or entity (the agent) acts on behalf of another
(the principal).
Elements – An agency relationship exists if there is:
1) Assent – a formal or informal agreement;
2) Benefit – the conduct primarily benefits the
principal; AND
3) Control – the principal has the right to control
the agent (control doesn’t need to be
significant).
*The characterization of the relationship by the parties is
irrelevant.
Types of Agency Relationships
− Universal Agent – has broad authority,
authorized for ALL acts the principal can
perform.
− General Agent – has authority to conduct a
series of transactions over a period of time.
− Special Agent – has limited authority either for
a specific act/transaction OR a specified period
of time.
Termination of Agency Relationship
An agency relationship terminates by:
a) A manifestation by either party that the
relationship is terminated;
b) Expiration of a specified term of authority;
c) Death of principal or agent (by operation of law);
OR
d) Incapacity of the principal or agent (by
operation of law) – except if a durable power of
attorney exists.
Death of Principal:
Common Law → agency is terminated regardless of
whether the third-party has notice of principal’s death.
Some States → NOT terminated until the third-party has
notice of the death.
Agency Contracts – Principal can terminate the agent
at any time.
− BUT, principal may be liable for damages if
agent is terminated prior to the expiration of a
contract (unless the agent materially breached
contract).
B. Contractual Liability of Principal & Agent
Actual Authority – A principal is bound to a contract
entered into by its agent if the agent had actual authority.
Two Types – occurs if:
Express Authority → by principal’s explicit directions to
the agent (either orally or in writing).
Implied Authority → either:
a) Action is necessary to carry out the agent’s
express authorized duties;
b) Agent acted similarly in prior dealings with the
principal; OR
c) It’s customary for an agent in that position
(silence/acquiescence can give rise to a
reasonable belief of authority in the future).
An agent has actual authority when acting within their
reasonable understanding of authority, even if the
principal later shows the agent was mistaken.
Apparent Authority – A principal is bound to a contract
entered into by its agent if the agent had apparent
authority.
Apparent Authority exists when:
1) A third-party reasonably believes the agent
has authority to act on behalf of the principal;
AND
2) That belief is traceable from the principal’s
manifestations (principal holds the agent out as
having authority).
A principal holds the agent out as having authority
when he:
a) gives a position or title indicating authority;
b) previously held the agent out and did not
published a revocation; OR
c) cloaked the agent with the appearance of
authority.
*Continues until the principal communicates termination
to third-parties.
Apparent Authority is NOT applicable if the third-party
had knowledge that the agent did not have actual
authority.
Unidentified/Partially Disclosed Principal → Apparent
Authority CAN exist.
Undisclosed Principal → Apparent Authority CANNOT
exist.
Inherent Agency Power – Protects third-parties when
dealing with agents even if there is no actual or apparent
authority.
H
H H
L
M
M
© 2020 SmartBarPrep | www.smartbarprep.com 1
PARTNERSHIPS 02
Definitions
Pship = Partnership
UPA = Uniform Partnership Act
RUPA = Revised Uniform Partnership Act
ULPA = Uniform Limited Partnership Act
RULPA = Revised Uniform Limited Partnership Act
A. Creation of Partnerships
General Partnership (GP) – is created when:
1) two or more persons;
2) as co-owners;
3) carry on a business for profit.
*Intent to form a partnership is NOT required.
A joint venture or sharing in gross profits DOES NOT
automatically create a partnership.
Creditor vs. Partner – A person who receives a share of
the profits is presumed to be a partner UNLESS the
payment is received in payment:
a) of a debt;
b) for wages as an employee or independent
contractor;
c) of rent;
d) of an annuity or retirement benefit;
e) of interest/loan charges; OR
f) for the sale of goodwill of a business.
Limited Partnership (LP) – is composed of limited
partner(s) AND at least one general partner.
Formation – An LP is formed upon filing a Certificate of
Limited Partnership with the Secretary of State, which
must include:
1) name of Pship;
2) address of Pship;
3) name and address of each partner;
4) whether the Pship is an LLP; AND
5) signed by a general partner.
Limited Liability Partnership (LLP) – In an LLP, all
partners have limited personal liability.
To Become an LLP:
1) It must be approved by the same vote necessary
to amend the Pship Agreement; AND
2) A Statement of Qualification must be filed with
the Secretary of State containing:
i. name and address of Pship;
ii. statement that the Pship elects to
become an LLP; and
iii. a deferred effective date (if any).
Filing DOES NOT create a new partnership (if a GP or
LP existed prior to filing).
− The Pship remains liable for any obligations
before it became an LLP.
Amending the Pship Agreement – Unless agreed
otherwise, the Pship agreement may be amended at any
time with a unanimous vote.
B. Power & Authority of Partners
Authority to Bind the Partnership – A partner is an
agent of the Pship, and generally has authority to bind
the Pship for its business (including contracts).
− To bind the Pship, the partner MUST have
authority.
Express Actual Authority – A partner receives such
authority from the partners.
− Acts within the ordinary course of business
→ must be approved by a majority of the
partners.
− Acts outside the ordinary course of business
→ must be approved unanimously.
− If Pship Agreement is silent → a partner has
authority for usual & customary matters
UNLESS he knows: (a) other partners might
disagree, or (b) that consultation is appropriate.
Ordinary Course of Business = normal and necessary for
managing the business.
Implied Actual Authority (Incidental Authority) – A
partner may take actions reasonably incidental or
necessary to achieve the partner’s authorized duties.
Apparent Authority – A partner has apparent authority
for acts:
a) conducted within the ordinary course of the
Pship business; OR
b) of the kind carried on by the Pship.
BUT, a partner’s act will NOT bind the Pship when the:
1) Partner lacked authority; AND
2) Third-party knew (or received notice) of a lack of
authority.
Authority to Bind the Partnership After Dissolution –
A partner’s authority is limited after dissolution.
Actual Authority → limited only to acts appropriate for
winding up the business.
H
H
M
M
M
© 2020 SmartBarPrep | www.smartbarprep.com 1
CORPORATIONS & LLC’S 03
Definitions
BoD = Board of Directors
SH = Shareholder
RMBCA = Revised Model Business Corporation Act
RULLCA = Revised Uniform Limited Liability Company
Act
A. Formation of a Corporation
Formation of a Corporation
Date of Corporate Existence → begins on the date the
Articles of Incorporation are properly filed with the
Secretary of State, unless a delayed effective date is
specified.
− RMBCA → DOES NOT allow an earlier effective
date.
De Jure Corporation = a properly formed corporation.
Articles of Incorporation – are filed to form a
corporation, and MUST contain:
1) corporate name;
2) number of shares the corp. is authorized to
issue;
3) corp.’s address and name of the initial registered
agent; AND
4) name and address of each incorporator.
The Articles of Incorporation control if there is a
conflict with the Bylaws.
Bylaws = rules and regulations adopted by the BoD that
govern the internal operations of a corp.
− RMBCA → bylaws may contain any provision
not inconsistent with the: (a) Articles of
Incorporation; OR (b) law of the jurisdiction.
Amending the Bylaws:
Shareholders → may amend or repeal.
Board of Directors → may amend or repeal UNLESS:
a) Articles of Incorporation exclusively reserve the
power to SH’s; OR
b) The SH’s (in amending a bylaw) expressly
provide that the BoD cannot amend or reinstate
that specific bylaw.
*If a bylaw deals with director nomination procedures,
the BoD retains power to safeguard the voting process,
BUT cannot repeal a shareholder approved bylaw.
Powers of a Corporation – A corp. has the power to do
all things necessary or convenient to carry out its
business and affairs.
− Includes → lawsuits, own/lease real property,
contracts, borrow/loan money, make
investments, involvement with other businesses,
fix compensation/salaries, charitable donations,
pay/engage in lobbying.
B. Formation of a Limited Liability Company
Formation of an LLC
Articles of Organization – An LLC is formed when the:
1) Articles of Organization (a.k.a. Certificate of
Formation) is properly filed with the Secretary of
State; AND
2) LLC has at least one member.
Operating Agreement – Governs: (1) the relations
between the members and LLC; (2) the rights/duties of
managers; (3) activities and affairs of the LLC; and (4)
any means and conditions for amending the Operating
Agreement.
C. Pre-Formation Contract Liability
Liability of Promoter – A promoter acts on behalf of a
corp. that has not yet been formed.
A promoter is personally liable when:
1) he purports to act as or on behalf of a corp.;
AND
2) knows no corp. was formed.
A promoter remains personally liable for a pre-corp.
contract even if the corp. subsequently adopts the
contract.
− BOTH the corp. and the promotor will be liable if
adopted.
A promoter is NOT liable if:
a) there is a subsequent novation; OR
b) the contract explicitly provides that the promoter
has no personal liability.
Liability of Corporation – A corp. is NOT liable on a
contract made by a promoter UNLESS the corp.
expressly or impliedly adopts the contract post-
incorporation.
− Express Adoption = BoD action or reference in
corp.’s formation documents.
− Implied Adoption = Corp. (1) knows / has
reason to know the material terms of the
contract; AND (2) accepts some benefit of the
contract.
M
M
M
M
L
L
L