Power of attorney
Power of Attorney (short: HV ) is the trading business limited business representative power . It provides a freely determined form of representation is and has the purpose of the business a sound basis for the representation of the action Kaufmannsgehilfenbrief to offer.
The legal basis for the power of attorney is HGB . Business partners can assume that the normal scope of a power of attorney in accordance with (1) of the German Commercial Code ( HGB ) is available for an authorized representative (HBV). This provision permits the authorized agent to carry out all legal transactions and legal acts or to undertake such legal transactions that the operation of the commercial trade usually entails. Excluded from this are the sale or encumbrance of real estate, entering into bill liabilities, taking out loans and conducting litigation; the businessman / authorized signatory must grant special authorization for this. A third party only needs to apply a restriction in the case of positive knowledge or negligent ignorance. The power of attorney is not entered in the commercial register, so that its scope is not known to business partners.
Because of their less far-reaching legal effects, their issuance to a minor does not require the consent of the family court, because BGB only requires judicial approval in the case of procuration.
The authorized representative is only allowed to do business that occurs in the trade in which he is active. The type of trade results from the business purpose of a company as it is entered in the commercial register. Further restrictions on the power of attorney result from the list of transactions that can only be delegated with special permission from HGB . According to this, the sale or encumbrance of real estate, entering into bill liabilities, taking out loans and conducting litigation are not permitted to the authorized representative without special authorization. Since the power of attorney is not registrable, business partners must have proof of the special authorization. On the other hand, the acquisition of real estate is permitted without special authorization, provided that this is "usually brought about by the operation of the trade".(2)
With this further restriction, the law wants to allow the authorized representative only those transactions that usually occur in a certain trade. In the case of a large company, the indefinite legal term "usually entails" also includes the conclusion of contracts with considerable financial implications, so that, in the absence of statements to the contrary, a third party may assume that a power of attorney derived from conclusive conduct extends to such contracts as well as to legal transactions that serve to carry it out. The BGH has no concerns about the admissibility of a general power of attorney that extends to all transactions that are customary in a business such as a GmbH, which is only aimed at acting under the (sub) power of attorney (s) of the managing director (s). Since further restrictions on the power of attorney are permitted (e.g. transactions up to a certain amount of money), business partners must regularly have the scope of the power of attorney verified.
So that third parties can recognize a legal representative as an authorized agent, the latter sign with the addition "in power of attorney", "on behalf" or "iV" / "iA" ( HGB ). As a pure regulatory requirement, however, this provision does not render those legal transactions entered into without this addition invalid.
The power of attorney can be described as a power of attorney, the scope of which can be determined by the businessman / authorized signatory and is only stipulated by law in the absence of such a provision. The lack of publicity in the register requires the business partners to act as legitimation, which enables a comparison of the transaction to be concluded with the scope of authorization of the power of attorney.
- General power of attorney: It extends to the entire operation of the respective trade in which the authorized representative is active. Here, too, the authorization only extends to customary and customary transactions. Ordinary businesses are those that are typical and common for a particular line of business.
- Type of power of attorney (also type of power of attorney): It is a subordinate type of power of attorney. The power of attorney entitles z. B. vendors, buyers, cashiers, to do certain recurring legal transactions on an ongoing basis. It is often granted with the conclusion of an employment contract.
- Special power of attorney: It allows individual, specifically specific transactions to be carried out (such as banking transactions, again as a rule, with the exception of encumbrances on land or borrowing). A special power of attorney can even only be issued for a single transaction (e.g. for a specific contract).
The type of power of attorney also provides information as to whether an authorized representative is authorized to represent you in certain transactions. The larger the company, the more specific (e.g. for purchasing departments) the power of attorney can be designed.
Business partner's point of view
If a company is represented by an authorized agent, a business partner must ask himself whether the authorized agent is authorized to do so in the case of actions relevant to representation. A business partner must neither assume positive knowledge of limited power of attorney nor negligent ignorance. A third party must therefore always object to restrictions on the scope of a power of attorney if he knew or should have known about them ( HGB ). Positive knowledge means that the business partner knows the facts of the scope of a power of attorney and has the legally relevant knowledge. The positive knowledge presupposes a certainty of the existence or non-existence of the scope of the power of attorney which is not necessarily exempt from all - especially unfounded - doubts. The proof of positive knowledge is usually much more difficult than the proof of “need to know”, i.e. a fact that can be objectively determined. There is no good faith with regard to the power of representation that could protect the honest business partner.(3 )
The restrictions on the power of attorney in accordance with HGB ). This means that the business partner must ensure with regard to the exceptional circumstances of (2) HGB whether and to what extent an authorized agent is authorized to do so. Only with regard to the exceptions from (2) of the German Commercial Code is it necessary for the business partner to check whether the authorized representative has such an additional authorization. If a third party has to accept a limitation of the power of attorney that deviates from the norm only in the case of positive knowledge or negligent ignorance, this means that in these cases he has to bear the damage resulting from the lack of power of representation himself.(2) of the German Commercial Code apply only if an employee is assumed to have positive knowledge of the limited power of attorney or negligent lack of knowledge. However, he only has to allow himself to be opposed to other restrictions unknown to the business partner insofar as they already result from the law ( (3 )
If the authorized representative concludes contracts with business partners to the extent of his power of attorney, he authorizes and obliges the merchant, in whose name and for whose account he acts exclusively. According to BGB, the merchant alone is responsible for his actions, even if he has delegated them to authorized signatories or authorized agents. If the authorized representative exceeds his authority, the distribution of damage is different. If the excess is based on positive knowledge or negligent ignorance of the business partner, the latter is liable for the damage that has occurred.,
Expiration of the power of attorney
As an alternative, the general provisions on power of attorney apply . Thereafter, the power of attorney expires with the legal transaction on which it is based, i.e. regularly with the employment contract ( sentence 1 BGB ), in addition also through the opening of insolvency proceedings ( InsO ), cessation of business or waiver by the authorized representative. The power of attorney is freely revocable. According to German Commercial Code (HGB) , the authorized representative may not transfer his power of attorney to another person without the consent of the owner of the commercial transaction.
In Austria , the power of attorney according to UGB extends to all transactions and legal acts which the operation of such a company or the conduct of such transactions usually entails; this also includes the conclusion of arbitration agreements . A third party only needs to allow restrictions on the power of attorney to apply against them if they knew or should have known them ( UGB).
In Switzerland , the authorized representative's power of representation according to Paragraph 1 of the Swiss Code of Obligations includes all legal acts that are usually involved in running the company and that are not unusual for the company. The authorized agent needs special authorization to enter into bill liabilities, to take out loans and to conduct litigation.
In common law , the power of attorney ( English special agency ) is always based on the principle that the power of attorney of the representative is based exactly on its content ( English special agent ).
- the authorized signatory may grant power of attorney; BGH DB 1952, 949.
- Hartmut Oetker, Handelsgesetzbuch , 2006, p. 132 ff.
- BGH DB 1978, 2118 f.
- BGH WM 1978, 1047.
- WISO learning documents. (No longer available online.) In: www.buerokauffrau-online.de. Archived from the original on November 25, 2016 ; accessed on November 24, 2016 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- Petra Buck, Knowledge and Legal Person: Attribution of Knowledge and Development of Organizational Duties under Civil Law , 2001, p. 47.
- Petra Buck, Knowledge and Legal Person: Attribution of Knowledge and Development of Organizational Duties under Civil Law , 2001, p. 53.
- BGH WM 1966, 491, 495.
- Otto Sandrock / Julius von Gierke, General Basics: The Merchant and His Company , Volume 1, 1975, p. 50