Power of attorney

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Polish Power of Attorney, 1922

A power of attorney is understood to mean the power of representation established by a legal transaction .

General

At least two legal entities are involved in the power of attorney , the principal and the authorized representative (s). The principal does not want or can not undertake or submit a specific legal transaction or a specific declaration of intent and therefore selects an authorized representative whom he can trust to carry out the power of attorney in the interests of the principal.

species

There are the following types of powers of attorney:

The prima facie power of attorney is not a real power of attorney, but a legal figure which, under certain conditions, protects the third party in good faith , even though the person who wrongly claims to be an authorized representative has no power of attorney.

history

In common Greek usage, ancient Greek ἐξουσία (exousia) derives from ancient Greek ἔξεστι (exesti) no later than the 5th century BC. As power of attorney. Here it was the power executing an obediently executed command, which must be determined by a legitimizing genuine source of power, since without this it would only be illusory. B. the ability to act and the right to do something, through the bestowal of a higher norm or authority. In summary, the common Greek usage of ἔξεστι (ν) is characterized by an action that is not prevented by itself, a higher norm or authority, or psychological or ethical nature. Thus doing has the power to exercise unhindered. In ancient Rome the authority was called potestas .

According to the German dictionary of the Brothers Grimm , the word Vollmacht appeared as “volmacht” for the first time in 1372 as a loan translation from the Middle Latin ( Latin plenipotentia ). Power of attorney (or “full power”) was translated from “omnipotent” ( Latin plenipotens ). The Pope has always had the power ("plenipotentia") to enact ecclesiastical laws and to impose obligations - to which he is bound himself - although he himself is above the law with regard to his authority. From 1548 the power of attorney appeared in legal dictionaries, Josua Maaler included it in his dictionary in 1561. Hugo Grotius assumed in 1625 that you can also commit yourself through someone else if it is certain that you have ordered him to do so.

The General Prussian Land Law (APL) of June 1794 spoke of the "power of attorney" (I 13, § 85 APL). It defined the power of attorney as "a declaration of intent whereby one grants the other the right to run a business for him and instead of him" (I 13, § 5 APL). The Baden Landrecht of January 1810 regulated the authorization. Since June 1811, Article 1017 of the Austrian Civil Code has spoken of an authorization mandate (Article 1002 f. Austrian Civil Code). The ADHGB of May 1861 treated the power of attorney and the order separately, because the power of attorney had external effects and the order only concerned the internal relationship between the client and the contractor ; the BGB, which came into force in January 1900, followed this principle of separation.

Legal issues

In Section 162 (2) BGB it is stipulated that the power of attorney can be granted through a legal transaction . If the authorized representative acts in accordance with certain instructions from the principal, the latter cannot invoke the ignorance of the authorized representative with regard to circumstances that he himself was familiar with. The same applies to circumstances that the principal had to know, provided that having to know is equal to knowledge . There is no power of attorney by law; instead there is legal representation , which however does not constitute a power of attorney.

Establishment and revocation of the power of attorney

The power of attorney is created through a unilateral declaration of intent by the principal to the representative (so-called internal power of attorney or internal power of attorney) or, in Germany, optionally also to the third party (so-called external power of attorney or external power of attorney).

A distinction should be made between the power of attorney and the basic transaction or basic relationship that usually exists between the principal and the authorized representative (e.g. an employment contract , an order , an agency contract , a commercial traveler contract, etc.).

The power of attorney can also be established tacitly ( implied ).

In contrast to German law, according to which a power of attorney can be granted as irrevocable, under Swiss law every power of attorney can be revoked at any time, even if it was granted as irrevocable.

Formal requirements

Powers of attorney can generally be granted informally, i.e. also verbally or implicitly . Even if a specific form is provided for a special declaration of intent , a formal requirement for the legal transaction does not affect the form of the power of attorney ( Section 167 (2) BGB). Example of this is the land purchase contract ( § 311b para. 1 BGB), the arrangements for its validity notarially certified to be. Even with a “only” written or publicly certified power of attorney (under Swiss law, tacit power of attorney is sufficient; most cantons , however, require in their notarial laws that a written power of attorney is to be presented to the notary ), the authorized representative can sign a property purchase agreement on behalf of the person represented before the notary legally sign. This is the rule that was previously unanimously upheld by case law . However, the case law has for many years abolished the separation of the form of the legal transaction from the form of the power of attorney in certain cases in order to protect the principal. The § 167 para. 2 BGB is teleological reduced. This means that the power of attorney must also have the form that is prescribed for the actual legal transaction, insofar as the protection of the principal requires it. The extent of this procedure is extremely controversial in the legal literature. This also applies to the interpretation of the relevant case law.

Two important applications for this judicial restriction of freedom of form are on the one hand:

  • Powers of attorney that are irrevocably granted and
  • Powers of attorney by means of which the authorized representative is exempted from the prohibition of self-dealing ( Section 181 BGB).

Written form is required under German law in particular for powers of attorney for which the authorized representative is to consent to medical interventions ( Section 1904 (2) BGB) or in deprivation of liberty ( Section 1906 (5) BGB) or where representation in court is provided ( Section 51 ( 1) . 3 ZPO ).

Scope of power of attorney

The scope of the power of attorney results from the power of attorney contract or from the power of attorney. As a rule, the basic relationship must also be taken into account when interpreting the power of attorney. As with all legal transactions, the principle of trust applies to the interpretation of the power of attorney, i.e. the declarations of the parties are to be interpreted in accordance with § 133 and § 157 BGB . A distinction must be made between internal and external power of attorney: the scope of the external power of attorney is to be determined based on the objective recipient horizon of the business opponent, whereas the internal power of attorney is based on the objective recipient horizon of the representative.

When it comes to the scope of a power of attorney, a distinction must always be made between the internal relationship between the principal and the authorized representative (the “may” of the representative) and the external relationship between the principal and the business opponent (the “ability” of the representative). In the case of external power of attorney in particular, the two can differ widely, since the business opponent regularly has no knowledge of the internal circumstances, so that they cannot have any significance for the scope of the power of attorney.

In the case of some specially typed powers of attorney - such as the power of attorney , Section 50 (1) HGB  - the law expressly stipulates that certain restrictions in the internal relationship have no effect when determining the scope of the power of attorney in the external relationship.

Exceeding the power of attorney

If the representative exceeds his power of representation, he acts as a falsus procurator without power of attorney and the third party does not have a claim to performance against the principal, unless the prerequisites of the so-called prima facie power of attorney are met or the represented person subsequently approves the transaction.

Revocation and resignation

The principal can revoke the power of attorney at any time, regardless of whether the underlying transaction or basic relationship continues. This does not apply to irrevocable powers of attorney.

The power of attorney can resign the power of attorney at any time, but must take into account that the principal can take care of his affairs ( Section 671 BGB). If the power of attorney terminates the basic relationship, this usually also indicates the tacit resignation of the power of attorney ( Section 168 BGB).

Expiry of the power of attorney

The expiry of the power of attorney is generally based on the basic relationship or transaction on which it is based ( Section 168 BGB).

According to the explicit provision of law, however, the power goes out in German law not with the death or the occurrence of the incapacity of the principal ( § 672 BGB), unless this has been explicitly provided in the proxy. In contrast, the power of attorney expires with the death of the power of attorney ( § 673 BGB).

Difference to legal representation

To distinguish it from the above-treated, granted by legal transaction proxy is the legal representative's (the parents to represent the children of the spouses (to represent the marital union power of the keys ), the guardians and caregivers , the executors, etc.). As its name suggests, this power of representation exists by law or by judicial or administrative order in certain cases provided for by law. The creation, scope and expiry of the legal power of representation are based on the relevant legal provisions or the regulations of the issuing authorities .

The organs of legal entities under private law (for example, the board of a stock corporation , managing director of a GmbH , board of an association or a foundation , etc.) or public law are not considered representatives . Rather, the organs are an integral part of legal persons , without which they cannot exist (to be compared with the hands and arms of natural persons). The executive bodies' powers to act (which are often, albeit incorrectly, referred to as corporate representatives ) result from the law, although certain restrictions are permissible in relation to the legal scope, provided they are entered and published in the commercial register (e.g. collective signature law or Area restriction).

International

In Austria , the contract whereby someone takes over a business assigned to them in the name of another is called a power of attorney contract ( § 1002 ABGB ). There are general and special powers ( § 1006 ABGB), limited and unlimited powers ( § 1007 ABGB). According to Section 1017 of the Austrian Civil Code, the authorized representative (“power holder”) can acquire rights and enter into obligations for the principal (“power provider”). The business is to be arranged in accordance with the power of attorney ( Section 1009 ABGB). If the proxy exceeds his / her authority, the principal must approve the transaction in accordance with Section 1016 of the Austrian Civil Code, otherwise it is ineffective.

If someone in Switzerland who is authorized to represent someone else concludes a contract on their behalf, the person represented and not the representative shall be entitled and obliged ( Art. 32 Para. 1 OR ). An authorization granted through a legal transaction can be limited or revoked by the principal at any time in accordance with Art. 34 OR, without prejudice to the rights that may arise from a different legal relationship between the parties involved. If the proxy has been issued with a power of attorney, he is obliged to return the document in accordance with Art. 36 OR after the power of attorney has expired. Art. 40 OR clarifies that special provisions apply with regard to the power of attorney for representatives and organs of companies, authorized signatories and other authorized representatives. The power of attorney expires, unless the contrary has been agreed or is evident from the nature of the transaction, upon death, declaration of missing , loss of legal capacity or bankruptcy of the principal or the authorized representative ( Art. 35 Para. 1 OR).

See also

Web links

Wiktionary: Power of attorney  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Brothers Grimm, German Dictionary , Volume 26, 1854, Col. 699
  2. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 450
  3. ↑ Augustinus Wucherer-Huldenfeld, Philosophical Theologie im Umbruch , Volume 2, 2015, p. 418
  4. ↑ Josua Maaler, Die Teütsch Spraach , 1561, p. 472
  5. ^ Hugo Grotius, De jure belli ac pacis , Volume II, 1625, I 1, XVIII 2
  6. ^ Badisches Landrecht, 1810, sentence 1984
  7. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 144
  8. ↑ RGZ 62, 335 , 336
  9. ↑ RGZ 76, 182 , 183
  10. ^ Claudia Schubert , in: Munich Commentary on the Civil Code. Volume 1, 7th edition 2015, § 167 BGB, Rn. 55.
  11. ^ Claudia Schubert , in: Munich Commentary on the Civil Code. Volume 1, 7th edition 2015, § 167 BGB, Rn. 59, 62.
  12. ^ Claudia Schubert , in: Münchener iComment on the BGB. Volume 1, 7th edition 2015, § 167 BGB, Rn. 62.
  13. ^ Peter Krebs , in: Munich Commentary on the Commercial Code. Volume 1, 3rd edition 2010, § 50 HGB, Rn. 4th