procuration

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Prokura ( Italian procura 'power of attorney' , from Latin procurare 'to take care of something' , to Latin pro 'for' , and Latin cura 'care' ) is a company issued to employees by a businessman in Germany, Austria and Switzerland extensive business representation power . It represents how the power of attorney , a freely determined form of representation is and has the purpose of the trade a secure basis for the representation of actions of commercial agents to offer.

Legal bases

The legal basis of the power of attorney can be found in German commercial law in § 48 to § 53 HGB . According to Section 49 (1) of the German Commercial Code (HGB) , it authorizes “to all types of judicial and extrajudicial transactions and legal acts which the operation of a commercial enterprise entails”. By using the indefinite article “a commercial trade”, the legislature wants to express that the authorized signatory may also conclude cross-industry transactions. This is precisely what the authorized agent is not allowed to do because the corresponding provision in Section 54 (1) of the German Commercial Code uses the more specific wording “such a commercial trade” and thus restricts his business to the commercial trade in which he is active. The power of attorney must be given expressly (orally or in writing) ( Section 48 Paragraph 1 HGB) and entered in the commercial register by the owner of the trade in accordance with Section 53 Paragraph 1 HGB. This entry only has a declaratory effect, since the formal appointment as authorized signatory constitutes a constitutive basis for a commercial power of attorney .

scope

The provision of Section 49 (1) of the German Commercial Code (HGB) stipulates the scope of the power of attorney so that the authorized signatory may act in this context in the name and for the account of the merchant and the transactions concluded in this way oblige and authorize the merchant ( Section 164 (1) BGB ). Even if the power of attorney in the internal relationship between the merchant and the authorized representative is more narrowly designed than the legal framework provides, the authorized representative may fully exhaust the scope of his commercial power of attorney in the external relationship, because § 50 HGB declares all restrictions on this power of attorney to be ineffective. The business partners of the authorized signatory can easily rely on the legally stipulated scope of the authorized signatory and do not need to fear the risk of a possible lack of power of representation.

Not only all typical and common business transactions are covered by a power of attorney, but all business transactions that even indirectly relate to any commercial trade, i.e. are at least still in a distant, loose connection with it. The existence of a commercial transaction is presumed according to § 344 HGB. This far-reaching power of attorney enables the authorized signatory to carry out legally effective transactions that are far outside the scope of his company's activities. The power of attorney even more includes all operational functions ( procurement , production , sales , insurance or financing ). Organizational or labor law acts are also permitted within the framework of a procuration.

So-called basic and principal transactions are excluded from the power of attorney . Basic business encompasses all actions that affect the commercial business as such. This includes in particular the encumbrance and sale of real estate and rights equivalent to real estate ( Section 49 (2) HGB), unless the authorized signatory is expressly authorized to do so, but also the sale of the company , the admission of new shareholders , the application for insolvency , the change in the Legal form or change of corporate purpose . Principal businesses are the original business of the merchant, e.g. B. the preparation of commercial balance sheets ( § 245 HGB), registrations to the commercial register , which only the merchant can effectively make ( § 29 , § 31 HGB) or the granting of the power of attorney itself ( § 48 Abs. 1 HGB). This makes a so-called sub-power of attorney inadmissible.

The authorized signatory, like a managing director, is subject to the prohibitions of self-contracting and multiple representation according to § 181 BGB, but the authorized signatory can be exempted from both prohibitions (contained in § 181 BGB) (like the managing director), which leads to entry in the commercial register must be registered (see self-dealing ). Since the power of attorney does not represent a sub- power of attorney for the manager, the manager himself can be exempted from the prohibitions of § 181 BGB - even if the manager himself does not have this exemption.

If the authorized signatory carries out business that is not covered by his power of attorney, he acts as a representative without power of representation according to § § 177 ff. BGB. In the external relationship, however, the company represented by the authorized signatory is always liable; in the internal relationship, the authorized representative can be held liable by the company. The multiple confirmation by case law that the external third party may at any time accept the legal scope of the corresponding power of attorney must be taken into account.

example
An authorized signatory receives the "individual power of attorney" for a GmbH.
Internally, however, the authorized signatory is prohibited from acquiring assets over EUR 1,000 for the GmbH.
The authorized signatory does this anyway and orders a computer in the name of the GmbH for EUR 2,000.00.
The GmbH is obliged to pay the supplier. She would also be sentenced to this in the event of a trial.
However, the authorized signatory is now internally liable to the GmbH with EUR 2,000.00.

species

Single power of attorney

Individual power of attorney is the power of attorney granted to a single person, which means that they alone can act as a representative. This power of attorney has a comprehensive character.

Branch power of attorney

In the case of branch power of attorney, the power of attorney is limited to a branch or branch of a company ( Section 50 (3) HGB). A power of attorney that extends to all branches of a merchant is called a general power of attorney. The companies of the branch offices must be distinguished by an addition, such as "Branch Grenzach-Wyhlen".

General power of attorney

In the case of genuine joint power of attorney ( collective power of attorney ), only two or more authorized signatories are authorized to act jointly ( Section 48 (2) HGB; see collective representation ). The authorized signatories must act jointly and sign regularly together.

Power of representation of the authorized signatory

In particular, an authorized officer may

Provided it for independent adjustment or dismissal of employees is entitled, even this is true for him Kündigungsschutzgesetz (groundless termination to limited compensation , § 14 para. 2, § 9 para. 1 sentence 2 of the Consumer Protection Act ).

On the other hand, he may not carry out any highly personal business of the owner, which by law is reserved for the merchant. This includes in particular

Unrestricted power of attorney to the outside world

Internal relationship

In the relationship between a businessman and an authorized signatory, the scope of the authorization can be restricted, for example through a service or employment contract with the authorized signatory.

External relationship

Restrictions in the internal relationship are absolutely ineffective vis-à-vis third parties ( Section 50 (1) and (2) HGB), therefore the transactions concluded by the authorized signatory without power of representation are also binding on the merchant unless the business opponent had positive knowledge of the lack of power of representation (see also section about the abuse). The authorized signatory is then obliged to pay damages to the merchant.

Cases of abuse in which the merchant is not obliged

In the event of abuse of the power of attorney, the principles on abuse of the power of representation are partially applicable. The following constellations are possible:

  • Collusion : the authorized signatory acts in agreement with the business partner in order to harm the person represented. In this case, the underlying legal transaction is null and void due to immorality in accordance with Section 138 of the German Civil Code .
  • The authorized signatory exceeds his internal powers and the business partner is aware of this fact. Here the evidence is detrimental , i.e. H. the obviousness of the lack of power of representation, the legal transaction in any case, according to another opinion grossly negligent ignorance . The legal consequences are controversial: According to one opinion, the person represented is entitled to the objection of inadmissible exercise of rights according to § 242 BGB, according to another opinion the rules on representatives without power of representation according to § § 177 ff. BGB apply analogously.

Furthermore, cases are conceivable in which the power of attorney was neither entered in the commercial register in accordance with Section 53 of the German Commercial Code , nor has the expiry of the power of attorney entered the commercial register through deletion , the so-called secondary incorrectness of the commercial register . It is controversial here whether the legal transaction that a representative has undertaken after the expiry of this power of attorney is still effective against the person represented, i.e. whether § 15 (1) HGB is applicable. If the applicability is affirmed, the above also applies in this case.

Expiry of the power of attorney

The power of attorney expires in the event of:

On the other hand, the power of attorney does not expire on the death of the business owner ( Section 52 (3) HGB). This is where the legal power of attorney , to which the procuration belongs, has an effect . The death of the principal does not change any legally valid powers of attorney.

If no deletion takes place in the commercial register after the power of attorney is revoked , third parties can invoke the continued existence of the power of attorney ( Section 15 (1) HGB).

The power of attorney is not a third party transferable .

signature

The exercise of the power of attorney is indicated by adding a reference to the power of attorney to the name of the businessman (the company ) and to the name of the authorized signatory ( § 51  HGB). The addition is usually abbreviated with ppa. ( Latin per procura autoritate 'with the power of a procura ' ).

International

In Austria , the power of attorney according to § 49 UGB extends to all types of judicial and extrajudicial transactions and legal acts that the operation of a company involves; a limitation of the scope of the power of attorney is ineffective against third parties ( § 50 UGB). Entry and deletion of the power of attorney must be entered in the commercial register. A sample signature (sample drawing) must be deposited with the entry.

In Switzerland , the power of representation of the authorized signatory according to Art. 459 Para. 1 OR includes obliging the principal and carrying out all kinds of legal acts in his name that the purpose of the trade or business of the principal may entail.

The legal figure of the authorized signatory is unknown in common law , so there is no adequate translation. Translating the general manager as "procurer" calls false friends on the scene, because that is the pimp in English . “Procuration” generally means “representation”, in the commercial sense also “proxy, power of attorney”. The authorized representative ( English general agent ) has the power of representation ( English general agency ) to represent the business owner in all matters of a particular business or a particular type of business.

See also

Web links

Individual evidence

  1. ↑ Hartmut Oetker: Commercial Code . 2006, p. 121 f . ( limited preview in Google Book search).
  2. ↑ Hartmut Oetker, Handelsgesetzbuch , 2006, p. 116.
  3. ^ Claus-Wilhelm Canaris, Hermann Staub, Wolfgang Schilling, Peter Ulmer, Detlev Joost: Commercial Code. Big comment. Volume 3, Part 1, 1995, p. 369.
  4. ↑ Hartmut Oetker: Handelsgesetzbuch , 2006, p. 117.
  5. ↑ BGHZ 63, 32 , 35
  6. ^ Claus-Wilhelm Canaris, Hermann Staub, Wolfgang Schilling, Peter Ulmer, Detlev Joost: Commercial Code. Big comment. Volume 3, Part 1, p. 370.
  7. ↑ here all legal transactions in banking from the opening of an account to the account availability , overdrafts , borrowing as well as the signing of loan agreements or the creation of loan collateral
  8. ↑ Hartmut Oetker, Handelsgesetzbuch , 2006, p. 124 ff.
  9. ↑ Hartmut Oetker, Handelsgesetzbuch , 2006, p. 124.
  10. ↑ Daniel Graewe (Ed.), Wirtschaftsrecht , 2019, p. 180
  11. ^ Procuration. In: wko.at. Accessed December 4, 2018 (German).
  12. ↑ Otto Sandrock / Julius von Gierke, General Basics: The Merchant and His Company , Volume 1, 1975, p. 50