QUESTIONS 3 AND 9, CHAPTER 8
QUESTION 4, CHAPTER 9
The case described in question three is connected with the commercial law particularly that orders which organize the matter of establishing partnership as “association of two or more people, caring on as co-owners of a business for a profit” ( Conviser, R.J, (2003) Gilbert law Summaries, Web). In the Section about Rights and Liabilities between Partners is stated that “Partners share of profits and losses – absent an agreement, profits are shared equally. Regarding losses – absent an agreement, losses are shared like profits.” (Tiffani L. Hume, Business Association. Web) Taking into consideration these principles we go back to the discussion of our case. From the abovementioned we know that the partners owe an initial capital of $ 18 000, respectively Jane - $ 6000, Eduard - $ 3000 and Terry - $ 9000. The first year they had a loss of $ 6000. As we already know that the three partners have to divide all profits and losses in absence of agreement equally, each of them has to cover a loss of $ 2000. The next year they realized profits of $ 54 000 and shared them into three equal parts of $ 18000.
The question nine concerns employer’s liability when someone of his agents commits a tort as a consequence of neglecting employer’s instructions in this case not to use the Avis Rent-A-Car System cars for their own purposes. The sixteen years old Bruno took one of the cars and driving to buy lunch for his girlfriend, his two colleagues and himself despite the employer’s instructions, killed two people in a car accident outside the gas station they worked. The families sued Bruno and the owner of the gas station. The owner’s defense objected explaining that Bruno was on his own at the time of the accident and the owner should not be held responsible for his malpractice. On the question how should the Court decide we have to answer that the owner should bear vicarious liability with the resulting from it consequences. In his article Top 10: Top 10 points on vicarious liability for The Daily Record Mark J. Moretti , a former chairman of the New York Bar Association’s Trial Lawyers Section writes: “the person in a position to exercise some general authority or control over the wrongdoer must do so or bear the consequences. L & L Plumbing & Heating v. DePalo, 253 A. D., 2 d 512 ( 2 d Dept. 1998)” ( Mark J. Moretti, May 1, 2012, The daily Record, Web) Further in point 10 he develops his reasoning writing “However, an employee who acts in direct contradiction of his employer’s instructions can still be within the scope of employment, and the employer can thereby be held vicariously liable”, Appolo Fuel Oil v. US, 73 F. Supp., 2d 254, aff’d 195 F, 3d 74 (EDNY 1999).
Question 4 discusses the problem of is there any violation of the securities laws in the case of Mr. Rubera acting through his company Alpha in selling, installing and maintaining pay telephones presenting a pure form of an investing program but Mr. Rubera omitted its registration according to the rules of S. E. C. violating in this way the securities laws. S. E. C. itself filed a claim against him. During the trial it was incontestably settled that nevertheless all contract gymnastics it was an investment contract and not registering it Mr. Rubera violated the security laws. Unfortunately “S. E. C. did not meet its burden of proving that Mr. Rubera acted with scienter was not clearly erroneous.” ( S. E. C. v. Rubera, 350 F, 3d 1084 ( 9th Cir. 2003)
Reference
Conviser, R. J., Gilbert Law Summaries, Web
Hume, T. L., Business Association, Web , www.slideshare.net/TLHume/agency-and-partnership
Moretty, M. J., Top 10: Top 10 points on vicarious liability, The Daily Record, May 1, 2012
