Proxy power of attorney
The apparent authority is not a real power , but to protect the contracting parties in his confidence , the opposite him as a deputy was authorized another occurring in the name of that other legal transaction to act. The contracting party receives - based on the prima facie power of attorney - a performance claim against the person represented, although the latter has not issued a power of attorney.
requirements
The following requirements must be met so that the contracting party (hereinafter referred to as the third party) receives a performance claim against the person represented:
- The representative must have given the alleged authorized representative, consciously or unconsciously, a position from which the third party could conclude that the person acting as the authorized representative was actually authorized to conduct the relevant legal transaction.
The decisive factor for the question of whether the representative has granted the alleged authorized representative the position suggesting authorization is solely how the alleged authorized representative was allowed and had to interpret the behavior of the representative in good faith. If the allegedly authorized representative has assumed his external position indicating authorization, the third party does not have a claim to performance. - The third party must have acted in good faith when entering into the agency business . This means that the third party must not have had any knowledge of the lack of power of attorney when the agent business was concluded, nor should the circumstances give rise to doubts about the authority of the allegedly authorized representative.
- In teaching and jurisprudence, especially in Germany, the requirements are also required differently. German teaching and jurisprudence usually require a certain frequency for the alleged representative to appear in the name of the person represented and, in addition, that the person represented culpably did not prevent this occurrence.
Delimitations
The prima facie power of attorney is not a power of attorney , but a legal figure which, provided the conditions mentioned are met, protects the third party in good faith even though the person wrongly acting as an authorized representative has no power of attorney at all. It is therefore (at least according to the legal opinion applicable in Germany) a legal liability .
The prima facie power of attorney differs from the so-called tolerance power of attorney, which is a real power of attorney that arises from the fact that the principal consciously tolerates someone acting as his authorized representative, so that the authorized representative (under German law, alternatively also the third party) in good faith could assume that he was actually authorized.
Since under German law the power of attorney can be justified not only by a declaration to the representative (so-called internal power of attorney), but alternatively also by a declaration to the third party (so-called external power of attorney), under German law in many cases in which prima facie power of attorney is to be affirmed, lies at the same time also real external power of attorney. This is often the case when the third party may in good faith infer an external power of attorney based on the external position that the representative has granted the allegedly authorized representative.
Incidentally, the term prima facie power of attorney is not always understood to mean the same thing in teaching and case law. Often, prima facie power of attorney is understood to mean that form of tolerance power of attorney, i.e. a real power of attorney, which comes about because the principal unconsciously tolerates someone acting as his representative, so that he or she can keep himself authorized in good faith. The prima facie power of attorney , as it is understood in the present article, is then called legal proxy , power of attorney by virtue of legal certificate or simply protection of good faith .
Despite a wide variety of terminology, the protection of bona fide third parties in their trust in the existence of a power of attorney under the above conditions is generally undisputed.
Legal basis
There is no express legal basis for proxy power of attorney in either Swiss or German law.
In the former, there is only the notification of power of attorney (which also includes the issuing of a power of attorney), if the presence of which the bona fide third party is protected in his trust in this notification of power of attorney, even if the power of attorney does not exist, no longer exists or is different from the one announced. The announcement can be made expressly or tacitly ( implied ). According to Swiss law, it is not necessary for the client to be aware of the explanation. The decisive factor is whether the third party was allowed and had to understand the allegedly proclaiming behavior in good faith as a proxy statement (principle of trust).
In analogy to this statutory offense of the disclosure of power of attorney, the Swiss Federal Supreme Court has in a rich practice protected the trust of third parties in good faith also in all other cases in which the alleged principal grants the alleged proxy a position with which the power of attorney determines in good faith Legal transactions is connected.
In Germany, where the protection of trust in a (culpably) initiated legal certificate is recognized as a general legal principle, the protection of the third party is designed as liability for legal certificate initiated. According to the prevailing view , Swiss law does not recognize any general protection of the trust of bona fide believers in the event of legal defects, but only protects good faith in the cases provided for by law, which can, however, be analogous.
Different opinions
The prima facie power of attorney is rejected by some of the teaching. This part of the teaching is mainly based on will-theoretical conceptions, according to which the question of whether an agency business has come about is fundamentally and above all the will of the principal.
Dieter Medicus explains that according to the system of the BGB there can be no liability for the performance damage. In contrast to the deliberate announcement of the authorization of a representative in Section 171 (1) and Section 172 (1) of the German Civil Code ( BGB), the proxy power of attorney is based on mere negligence. Therefore only a liability claim against the person represented from culpa in contrahendo in the amount of the fidelity is correct .
Werner Flume, on the other hand, denies the existence of legal claims at all. Rather, the entire right of representation is based on declarations of intent; a power of attorney is also based on a declaration of intent, just as a power of attorney is a declaration of intent “to whom it may concern”, which only becomes effective against the person to whom it is presented. The prima facie power of attorney, which is not based on any conscious action on the part of the person represented, is therefore rejected; liability for fidelity damage from culpa in contrahendo is the correct legal consequence in appropriate cases. Flume also states that, contrary to the opinion of the BGH, the proxy power of attorney corresponds to unrecognized legal principles and is certainly not customary law.
Court rulings
- BGH , judgment of February 12, 1952 - I ZR 96/51 -, BGHZ 5, 111–116
- BGH, judgment of March 10, 1953 - I ZR 76/52 -, BGH LM No. 4 on § 167 BGB
Individual evidence
- ↑ Musielak, Examination Course BGB, Rn. 30th
- ↑ BGE 120 II 197 ff. , With references to teaching and jurisprudence
- ↑ Steffen, BGB-RGRK, 12th edition, § 167 marginal number 19 with further evidence
- ↑ cf. also BGHZ 86, 273
- ^ Medicus, Dieter: General part of the BGB, 9th edition, CF Müller, Heidelberg 2006, marginal nos. 969 - 972
- ↑ Flume, Werner, General Part of Civil Law Volume 2, The Legal Business, 4th Edition 1992, Section 49
