Falsus procurator
Falsus procurator ( Latin literally: "false representative") is the legal technical term for a representative without power of representation (Austrian false representative ). The term comes from Roman law . The feminine form is falsa procuratrix . Anyone who makes legal statements on behalf of someone else , e.g. B. concludes a sales contract without being authorized to do so , acts as a falsus procurator .
It is often not apparent to the contractual partner that he is dealing with a wrong representative. The concluded legal transaction , of which the person allegedly represented also usually does not know, is initially “pending” ineffective due to the lack of effective representation. This legal deficiency can be "cured" in German law through the subsequent consent (approval) of the person represented. Then the deal takes effect as if the agent had been authorized from the start. In Austrian law, the pending ineffective legal transaction can also be subsequently approved and thus cured ( convalescence ) with the consent of the principal .
As long as the person represented has not approved the contract, the contractual partner has a right of withdrawal . However, this does not apply if he already knew when the contract was concluded that he was dealing with a falsus procurator .
If the representative does not approve the transaction, it is finally ineffective. However, the contractual partner is not defenseless. According to German law, he can stick to the falsus procurator and demand either fulfillment of the contract or compensation for damages .
Legal situation in Germany
The prerequisites and legal consequences of representation without power of representation are regulated in Germany in Sections 177 , 178 and 179 of the German Civil Code (BGB), provided that no special provisions are relevant (e.g. Section 41 (1) AktG, Section 11 (2) GmbHG, Section 54) Sentence 2 BGB) or a prima facie power of attorney or tolerance authority (if constitutional) is available.
Legal consequences
If someone acts as a representative without power of representation, the underlying, at least bilateral, legal transaction between the alleged representative and the business opponent (i.e. the person who acted as a falsus procurator) is initially ineffective (see Section 177 (1) BGB).
In the case of a unilateral legal transaction that does not need to be received (for example a donation ), representation without power of representation according to Section 180 sentence 1 BGB is not possible and approval is therefore excluded. In this case, liability in accordance with Section 179 of the German Civil Code (BGB) is likewise not possible. Only liability according to general principles comes into question, for example in accordance with § § 823 ff. BGB.
In the case of a unilateral legal transaction that requires receipt (for example a termination), Section 180 Sentences 2 and 3 BGB apply . If the business opponent of the person acting without power of attorney has not objected to the alleged power of representation or if he has agreed, the rules on contracts (i.e. § § 177 ff. BGB) apply accordingly.
The pending ineffectiveness can be eliminated by the following options:
- The business opponent revokes § 178 sentence 1 BGB. This can be done by means of a declaration of intent to the representative or to the person represented, § 178 sentence 2 BGB. The declaration can also be implied, i.e. H. be done through conclusive action. However, the business opponent must show that he does not want the underlying legal transaction to apply due to the lack of power of representation. This means that there is no implied revocation if the business opponent revokes, for example, due to defects in an item. In the event of an effective revocation, the underlying, pending ineffective legal transaction will be destroyed retrospectively. Contrary to the regulation of § 178 BGB, the revocation is excluded if the business opponent was aware of the defect when the contract was concluded. However, grossly negligent ignorance or need to know does not harm.
- The opposing party requests the person represented to submit a declaration of approval, Section 177 (2) sentence 1 of the German Civil Code (BGB). In this case, the legal transaction can only be approved by the person represented vis-à-vis the business opponent; a declaration of refusal or approval by the person represented to the representative becomes invalid. If the person represented does not make the declaration within a period of two weeks after receipt of the request from the business opponent, it is deemed to have been refused, Section 177 (2) sentence 2 BGB.
- Approval by the person represented ( § 177 , § 182 ff. BGB). The represented person can approve the legal transaction vis-à-vis the business opponent as well as vis-à-vis the representative, if a request according to § 177 paragraph 2 sentence 1 BGB has not yet been received. With the approval, the pending ineffective legal transaction becomes effective retrospectively ( § 182 , § 184 Paragraph 1 BGB). According to the case law of the BGH, this approval can also be given in a form-free manner if the legal transaction required a form (for example in the case of a purchase contract for a property according to Section 311b (1) BGB). This legal conception is controversial in the literature.
- The represented refuses the approval; this makes the legal transaction finally ineffective.
Possible claims of the business opponent against the falsus procurator
In the event of the final ineffectiveness of the legal transaction, the representative is liable without power of representation according to § § 179 ff. BGB. This liability is independent of fault (so-called guarantee liability), i. H. the representative without power of representation is also liable in the event of non-negligent or willful action. The scope of liability is, depending on the choice of the business opponent, to fulfillment of the legal transaction or to compensation, which is limited to the interest in fulfillment. However, if the representative is not aware of his lack of power of representation, liability is limited to fidelity damage ( Section 179 (2) BGB). There is also an exclusion of liability according to § 179 Paragraph 3 BGB, depending on the situation.
Possible claims of the falsus procurator against the represented
The representative without power of representation can, if the representation existed in the interest and in the real or presumed will of the person represented, demand reimbursement of the expenses according to § 683 , § 670 BGB (management without order). Claims based on reliance on a non-existent power of attorney also come into question, analogously from Section 122 of the German Civil Code.
Possible claims of the represented against the falsus procurator
If the person represented is approved, the person represented may have a claim from unjustified management without an order under Section 678 of the German Civil Code ( BGB) or from unlawful acts ( Section 823 ff. BGB).
Possible claims of the business opponent against the represented
If the falsus procurator acted as a so-called vicarious agent of the person represented, a claim under Section 831 of the German Civil Code (BGB) comes into consideration if the latter has tortured the business opponent. A claim based on negligence in contract negotiations (culpa in contrahendo, § § 280 paragraph 1, § 311 paragraph 2, § 241 paragraph 2, possibly in conjunction with § 278 BGB) is possible if the person represented knew or should have known that the falsus procurator had no power of representation or that he was consciously involved. If the business opponent has provided the represented person, a claim to performance conditions according to § 812 paragraph 1 sentence 1 BGB comes into consideration.
Legal situation in Austria
In Austria, the prerequisites and legal consequences of representation are regulated in the 22nd main part (§§ 1002-1044) of the ABGB . Among other things, the consequences of a lack of power of attorney ( false representation , falsa procuratio).
