Power of representation
Power of representation to be exercised by other persons is only required in the case of private individuals if they are not allowed to act themselves (e.g. in the event of lack of legal capacity ), can (due to guardianship ) or want to ( legal representative ). Legal persons or associations of persons are not able to act as such, but only acquire their capacity to act through the administrator . So who represents the Executive Board as a body , the company outward, first through the board members can be implemented as incumbents. Actions by the governing body directly represent actions of the legal person or association of persons, but are not a case of legal representation .
Power of representation is a legal term which , in accordance with German Civil Code, applies to declarations of intent made by the representative on behalf of the person represented; it works directly for and against the person represented. This is directly entitled and obliged from legal transactions under the law of obligations . The power of representation can be limited by the represented person with the help of the power of attorney . The power of representation can only relate to a specific single legal transaction ( special power of attorney , for example in the case of a property purchase agreement ), a specific type of legal transaction ( generic or type power of attorney , for example for all banking transactions ) or comprehensively cover all possible legal transactions ( general power of attorney ). The power of representation can therefore range from comprehensive power of representation to representatives without power of representation .
The power of representation is abstract from the underlying internal relationship between the representative and the person represented (principle of abstraction ), so that a restriction resulting only from the internal relationship (the “may”) does not affect the power of representation in the external relationship. If the representative exceeds his power of representation in an external relationship, there is representation without power of representation ( Latin falsus procurator ), which the person represented can subsequently approve or reject ( (1) BGB).
Depending on the legal source, there is legal, legal or organizational power of representation:
- In the case of legal power of representation , the law grants the representative the power to bring about legal consequences for the person represented . This includes the power of keys ( BGB), parental care for children ( , BGB), the power of representation of the guardian ( BGB), the carer ( BGB), the carer ( ff. BGB) or the co-heirs in the context of emergency management ( (1) sentence 2 BGB). Special regulations regulate, for example, the power of representation of the administrator for the apartment owners association ( (2) WEG).
- The legal power of representation is granted by power of attorney ( Paragraph 2, Clause 1 BGB), the scope of which is determined by the principal to be represented. A legally typed scope is unique to procuration , action and power of attorney . The power of attorney is a unilateral legal transaction and a declaration of intent that must be received - not a multi-sided legal transaction like a contract . Examples are the power of attorney for a bank , the voting rights in a securities account , the mandate for a lawyer or the power of attorney . A postal power of attorney only shapes the postal usage relationship; it has no effects under private law.
- It is a matter of an organ union power of representation if organs of a legal person are allowed to represent them in external relations in and out of court. This includes the board of directors of a registered association ( (2) BGB), a stock corporation ( (1 ) AktG ) or a cooperative ( (1) GenG ) and managing directors of a GmbH ( (1) GmbHG ).
While the legal and organizational power of representation are usually unlimited, the legal power of representation is usually limited in scope.
The available power, in contrast to the authorization is not certain to undertake actions against third parties, for the disposal is quite a commercial transaction. Therefore, that is living will a disposition containing the consent to or refusal of certain medical measures.
- Helmut Rüßmann : Power of Representation 2004
- Markus Rehberg: Ludwig Mitteis, The Doctrine of Substitution (1885) June 3, 2015
- Heinz Hübner, General Part of the Civil Code , 1996, p. 516
- Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 1456
- Reinhard Bork, General Part of the Civil Code , 2006, p. 541
- Kurt Schellhammer, Law of Obligations according to Claim Basis , 2011, p. 1117
- BGHZ, 98, 140
- Andreas Staufer / Daniel Hülsmeyer / Thorsten Kohlmann, living will, power of attorney and Co. for dummies , 2012, p. 200