Chapter 4: Agency and Partnership on the California Bar Exam

Agency and Partnership on the California Bar Exam

Agency and Partnership is a newer subject on the California Bar Exam. It was just added in 2007 and now is included—along with Corporations—in the subject of Business Associations on the California Bar Exam.

Here, we give you a brief overview of how you should expect to see Agency and Partnership tested on the California Bar Exam. We tell you how it is tested as well as some of the highly tested issues in Agency and Partnership questions on the California Bar Exam.

Agency and Partnership on the California Bar Exam

1. First, know how Agency and Partnership is tested. 

Agency and Partnership sometimes is tested on its own and sometimes is tested with another subject, such as Corporations (see the frequency chart).

When Agency and Partnership appears on the California Bar Exam, general law tends to be tested. (So, California-specific law is not tested!)

2. Be aware of the highly tested Agency and Partnership issues. 

The State Bar of California tests certain issues repeatedly in Agency and Partnership questions. (We have a nice summary of these in our California Bar Exam One-Sheets.)

Some of the most highly tested Agency and Partnership issues on the essay portion of the California Bar Exam include:

• Actual authority: Actual authority can be express (the agent is expressly given authority to act for the principal) or implied (the principal’s conduct led the agent to believe it has authority).

• Apparent authority: The elements of apparent authority are: (1) the person dealing with the agent must do so with a reasonable belief in the agent’s authority and (2) the belief must be generated by some act or neglect on the part of the principal.

• Vicarious liability: The principal is liable in tort if the agent was acting in the scope of employment (e.g., doing the job the agent was hired to do); if the agent made a minor deviation (a detour) from employment; or if the agent committed an intentional tort (but only if the tort was for the principal’s benefit, because the principal authorized it, or one that arose naturally due to the nature of employment (mnemonic = BAN)).

• Partnership formation: A partnership is defined as the association of two or more persons to carry on as co-owners a business for profit, whether or not the persons intended to form the partnership. Profit sharing creates a presumption that a partnership has been formed (but this can be rebutted if the profits were paid as wages, rent, etc.).

• Partnership liability: Partners are jointly and severally liable for all torts committed by employees or partners in the ordinary course of business or with the authority of the partnership. (And partners are always liable for their individual torts.)

3. Practice! 

You will note that Agency and Partnership is the least-tested subject on the California Bar Exam. Additionally, Agency and Partnership is often combined with another subject. However, you should still prepare for the possibility of encountering an Agency and Partnership essay on the California Bar Exam. Because Agency and Partnership is usually tested in a straightforward manner, proper preparation will go a long way in helping you achieve an excellent score! Here are a few essays to practice:

• February 2020 Agency and Partnership essay: this essay applies general law and covers formation of a general partnership, actual authority, and apparent authority (see essay #5 under Business Associations).
• February 2015 Agency and Partnership essay (combined with Torts): this essay applies general law and covers the formation of a general partnership, vicarious liability, partnership liability, actual authority, and apparent authority (see essay #5 under Business Associations).
• July 2014 Agency and Partnership essay (combined with Professional Responsibility and Corporations): this essay applies general law and covers the formation of an LLP, partner liability for individual torts, actual authority, and apparent authority (see essay #3 under Business Associations).
• February 2013 Agency and Partnership essay (combined with Corporations): this essay applies general law and covers partnership formation, vicarious liability, and partner liability (see essay #6 under Business Associations).

If Agency and Partnership is tested and you know the law, you will be able to pick up points quickly!

Go to the next topic, Chapter 5: Civil Procedure.

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