Fiduciary Duties

Partnership Duty of Care

A partner has a duty of care to the partnership and the other partners to refrain from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law

partnership duty-account

A partner has a duty of loyalty to the partnership and the other partners to account to the partnership and hold as trustee for it any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity;

partnership duty-competition

A partner has a duty of loyalty to the partnership and the other partners to refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership

partnership duty-adverse dealing

A partner has a duty of loyalty to the partnership and the other partners to refrain from dealing with the partnership in the conduct or winding up of the partnership business as or on behalf of a party having an interest adverse to the partnership

agent duty-act within authority

An agent has a duty to take action only within the scope of the agent's actual authority

principal duty-indemnify

i. A principal has a duty to indemnify an agent in accordance with the terms of any contract between them; and unless otherwise agreed: 1. when the agent makes a payment (i) within the scope of the agent's actual authority, or (ii) that is beneficial to the principal, unless the agent acts officiously in making the payment; or when the agent suffers a loss that fairly should be borne by the principal in light of their relationship

principal consent to agent breach of duty

i. Conduct by an agent that would otherwise constitute a breach of duty, does not constitute a breach of duty if the principal consents to the conduct, provided that: 1. in obtaining the principal's consent, the agent a. acts in good faith; b. discloses all material facts that would reasonably affect the principal's judgment, unless the principal has manifested knowledge of those facts/or does not wish to know; c. otherwise deals fairly with the principal; and the principal's consent concerns acts or transactions of a specified type that occur in the ordinary course of the agency relationship

partnership cannot eliminate the duty of loyalty, but what can they modify

partnership agreement may identify types of activities that do not violate the duty of loyalty, IF NOT MANIFESTLY UNREASONABLE all partners or number specified in partnership agreement may authorize or ratify, after full diclosure of material facts, a specific act that would otherwise violate duty of loyalty.

agent duty-competition

An agent has a duty to: - refrain from competing with the principal; - refrain from taking action on behalf of or otherwise assisting the principal's competitors. But, an agent may take action to prepare for competition following termination of the agency relationship.

principal duty-contract

A principal has a duty to act in accordance with the express and implied terms of any contract between the principal and the agent.

principal duty-fair dealing and good faith

A principal has a duty to deal with the agent fairly and in good faith, including a duty to provide the agent with information about risks of physical harm or pecuniary loss that the principal knows, has reason to know, or should know are present in the agent's work but unknown to the agent.

Agent Duty-material benefit

An agent has a duty not to acquire a material benefit from a third party in connection with transactions/actions taken on behalf of the principal or through the agent's use of his position

agent duty-adverse party

An agent has a duty not to deal with the principal as or on behalf of an adverse party in a transaction connected with the agency relationship

agenty duty-comply w/ K w/ principal

An agent has a duty to act in accordance with the express and implied terms of any contract between the agent and the principal.

agent duty-provide information

An agent has a duty to use reasonable effort to provide the principal with facts that the agent knows, has reason to know, or should know when - subject to any manifestation by the principal, the agent knows or has reason to know that the principal would wish to have the facts or the facts are material to the agent's duties to the principal; and - the facts can be provided to the principal without violating a superior duty owed by the agent to another person

agent duty-property

An agent has a duty, subject to any agreement with the principal, 1. not to deal with the principal's property so that it appears to be the agent's property; 2. not to mingle the principal's property with anyone else's; and to keep and render accounts to the principal of money or other property received or paid out on the principal's account.

agent duty-conduct

An agent has a duty, within the scope of the agency relationship, to act reasonably and to refrain from conduct that is likely to damage the principal's enterprise.

agent duty-principal property/CI

An agent has a duty: - Not to use property of the principal for the agent's own purposes or those of a third party; and - Not to use or communicate confidential information of the principal for the agent's own purposes or those of a third party.

General Fiduciary Principle

An agent has a fiduciary duty to act loyally for the principal's benefit in all matters connected with the agency relationship.

can partnership's modify duty of care?

Partnership agreement may not unreasonably reduce the duty of care under Section 404(c) or 603(b)(3).

partnership duty-general rule

The only fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care. A partner does not violate a duty or obligation under this [Act] or under the partnership agreement merely because the partner's conduct furthers the partner's own interest

principal duty-all summary

a. Compensate the agent for services. 8.13 b. Indemnify the agent for expenses. 8.14. c. Provide the agent with information concerning the risks of physical harm or pecuniary loss attendant to his agency. 815. d. Refrain from injuring the agent's business reputation or self-respect. 8.15 e. Provide a safe working environment for agents who are servants (employees). f. Duty to deal with the agent fairly and in good faith. 8.15

agent duty-care, competence, dillegence

i. Subject to any agreement with the principal, an agent has a duty to the principal to act with the care, competence, and diligence normally exercised by agents in similar circumstances. If an agent claims to possess special skills or knowledge, the agent has a duty to the principal to act with the care, competence, and diligence normally exercised by agents with such skills or knowledge.