(Clifford) Business Associations Fall 1998 Syllabus

General Note: Most of the assignments do not include express reference to statutory provisions. Readers are, however, expected to refer to the statutory provisions cited in the notes and text.

Chapter 1. Introduction

A. In General, 1-11. Focus on notes 1-8 on pp. 5-7.

B. A Brief Glance at the Role of the Law of Agency in Business Associations, 8-9. Prepare notes (a) to (c) for class discussion; refer to the Introduction to Agency Principles in the casebook appendix at 1098-1110.

C. A Bird's Eye View of Theories of Corporateness, 9-16.

Chapter 2. The Partnership

A. The Need for a Written Agreement, 17-18; Supplementary Materials at 1.

B. Sharing of Profits and Losses, Casebook at 18-35; Supp Materials at 2-4.
    1. Limited Liability Partnerships (LLPS) 136-41.

      2. D. Management

      1. Sharing in control, National Biscuit Co. v.Stroud, p. 41.

      2. Apparent Authority, Smith v. Dixon, p. 42 (and notes).

      a) The special case of the lawyer partner, Rouse v.Pollard, p. 46 (and notes) and Roach v. Mead, p. 49 (and notes) ; Shelton v. Fairley, and Investors Title v. Herzig, Supplementary Materials at 5-10.

      E. The Partner as Fiduciary, A Landmark Case: Meinhard v. Salmon, p. 54 and notes.

      F. Partnership Property, 63-67.

      1. What is partnership property? Loan or capital contribution? UPA ' 8.
      2. How is title to partnership property held? Who can convey title to partnership property? '' 8 and 10.
      3. The Nature of the tenancy in partnership and of the partner's interest in the partnership. C/b 63-64; UPA '' 24-26.
      4. Can separate (i.e., non-partnership) creditors of individual partners reach the partnership property? C/b 65 (starting with N.3) and UPA ' 28.
      5. The partnership in bankruptcy: The jingle rule. N. 5, p. 67.
      6. Can a partner assign her partnership interest? UPA ' 27; N. 6, p.67.

G. Partnership Accounting, 67-73; Supplementary materials at 11-12.

H. Partnership Dissolution, Winding Up, and Continuation with and without agreement, 73-109.

I. Inadvertent Partnerships

1. Excessive creditor control, Martin v. Peyton, 110.

2. Holding out to the public, Smith v. Kelley, 114.

OMIT 115-18.

Chapter 3. Other Unincorporated Business Forms

A. In general, 119-20.

WARNING: READING AHEAD! Chapter 4 (pp.166-193) consists of a number of excerpts to read and digest. Be prepared for that leap. Chapter 5 also begins with a lump of reading which includes statutory references. You may want to get a head start.

B. The Modern Limited Partnership , 120-35.

C. The Limited Liability Company, 135-44.

D. Influence of Federal Income Tax on the Choice of Business Form; the new ACheck-the-Box@ rule, 144-65.

Chapter 4. The Development of Corporation Law in the United States. This material will not be covered systematically in class. You may raise questions for discussion.

Chapter 5. The Formation of a Closely Held Corporation

A. Where to Incorporate, 194-95.

B. How to Incorporate: Drafting the Articles and Minutes of the Organizational Meeting, 195-213. Work through the notes on pp. 197-209 and scan the By-laws on pp. 209-13.

C. The Decline of the Doctrine of Ultra Vires, 213-221.

D. Premature Commencement of Business.

1. Promotors

a) 222-25.

b) Liability to third persons, 225-33.

c) Ratification by corporation of promoter contracts, 233-36.

2. Defective Incorporation.

a) Impact of MBCA on "de facto" corporations and corporations by estoppel, 236-41.

b) The "de facto" doctrine, 241-45.

c) "Estoppel" to deny corporateness, 246-49.