Rejection of a declaration of intent due to failure to present a power of attorney

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The rejection of a declaration of intent due to failure to present a power of attorney is regulated in German civil law in Section 174 BGB. It is to be distinguished from a rejection of a declaration of intent due to lack of power of representation according to § 180 sentence 2 BGB.

According to § 180 sentence 1 BGB, representation without power of representation is not permitted. From this, § 174 BGB draws the consequence that in the case of a unilateral declaration of intent that requires receipt, an authorized representative must present a power of attorney. The declaration of intent is ineffective if the recipient of the declaration immediately rejects the declaration of intent. According to § 174 sentence 2 BGB, rejection is excluded if the principal has informed the recipient of the declaration of the authorization.

An effective rejection according to § 174 sentence 1 BGB leads to the ineffectiveness of the declaration of intent. This also applies if there was a power of representation. A cure or approval according to § 177 BGB is no longer possible after the rejection.

Standard purpose

Section 174 BGB is intended to counteract the uncertainty as to whether a unilateral legal transaction originates from an authorized representative and binds the person represented. For example, there may be “a violation of power of attorney, misuse of power of attorney, or even just doubts about the existence of a power of attorney, so that the third party must be protected by the right of refusal. The legally required proof of power of attorney does not make business transactions unnecessarily difficult. ”The purpose of Section 174 BGB is not to protect the recipient of the declaration from all uncertainties in connection with questions of representation. It is all about the uncertainty as to whether a certain person is authorized to carry out the legal transaction. Whether a declaration can be assigned to a person is not a question of the power of representation and its documentation.

scope of application

Material scope

Unilateral legal transaction

§ 174 BGB is directlyapplicableto unilateral legal transactions . A legal transaction that is not related to another declaration of intent isunilateral. These are e.g. B. the notice of termination and the declaration of contestation.

Business-like act

Section 174 of the German Civil Code (BGB) applies accordingly to business-like acts , but not to all.

The applicability of § 174 BGB to the following business-like actions is affirmed :

The applicability for:

Is controversial

Power of attorney

Section 174 BGB sets a power of attorney, d. H. a legally granted power of representation beforehand. § 174 BGB does not apply in the case of a legal or organizational power of representation.

The organs of a legal person (example: managing director of a GmbH) generally do not require a power of attorney. Your actions are considered to be actions of the legal person itself.

Section 174 of the German Civil Code (BGB) is applied analogously to cases in which a general representative is authorized to represent alone:

  • General representative with authorization for sole representation :
In the event that "a collective power of representation through the authorization of an individual member of the body is extended to a sole power of representation by the members of the body together with him or her, the analogous application of § 174 BGB is recognized".
Example: M's lease with the A-OHG. Shareholders are A and B. According to the articles of association, there is joint representation. A authorizes B to sole representation. B alone signs the rent increase request to M. M rejects this in the absence of submission of the power of attorney according to § 174 BGB. Rightly.
  • GbR partner authorized to represent alone :
The Federal Court of Justice has " affirmed a right of rejection according to § 174 sentence 1 BGB, if a partner authorized to represent a company under civil law makes a unilateral declaration of intent that must be received and does not enclose a power of attorney from the other partners, the articles of association, or a declaration from the other partners which gives the acting partner the power to represent the company alone. ".

In the case of legal power of attorney, a distinction must be made between the legal process according to § 81 ZPO and a more extensive legal process power of attorney :

  • The legal power of attorney in accordance with Section 81 of the German Code of Civil Procedure does not authorize the employer's legal representative to issue a notice of termination from the employer if the subject matter of the dispute is only a specific application for protection against dismissal according to Section 4 sentence 1 KSchG, but only if the employee has submitted a general application for a declaration. Another question is whether the employee has been informed of any further powers of termination within the meaning of Section 174 sentence 2 of the German Civil Code (BGB) through the process power of attorney presented to him by the employer attorney .

requirements

Failure to submit an original power of attorney

Section 174 sentence 1 BGB applies if the original of the power of attorney is not presented. This means that the original (not: a mere copy, copy) with the original signature must be submitted.

It is not sufficient:

  • the submission by fax;
  • a power of attorney transmitted by E. Mail.

Effective rejection

A rejection is only effective if it

(1) is recognizable as a rejection,
(2) recognizable due to the non-submission of the power of attorney
(3) to the correct respondent and
(4) immediately i. S. d. § 121 BGB was declared and
(5) has not been effectively rejected on your part according to § 174 BGB.

(2) In practice it is often not sufficiently clear whether there is only a rejection according to Section 180 BGB or also a rejection according to Section 174 BGB. Both are possible together. It just has to be recognizable what is being criticized. A rejection due to a lack of power of representation (Section 180 BGB) is not automatically a rejection due to a lack of a power of attorney (Section 174 BGB).

(4) The rejection must take place immediately . “Immediately” is defined by law in Section 121, Paragraph 1, Clause 1 of the German Civil Code and means “without undue delay”. This is an individual question. In practice, guidelines have mostly been established in the individual legal areas, from which deviations can be made if special circumstances exist in individual cases.

  • In labor law, the rejection of a dismissal due to failure to present a power of attorney is generally no longer "immediately" if this does not happen within a week - unless there are special circumstances.

(5) The declaration of rejection according to § 174 BGB, which is not accompanied by an original power of attorney, can in turn be rejected according to § 174 BGB,

No other notification (§ 174 sentence 2 BGB)

General

An effective rejection is excluded “if the principal had informed the other party of the authorization” ( Section 174 sentence 2 BGB).

The information must be given by the person to be represented. Any other accidental acquisition of knowledge by third parties is not sufficient. It is also possible tacitly ("implied"). "The notification according to § 174 sentence 2 BGB [...] must be an equivalent replacement for the lack of submission of the power of attorney". The recipient of the declaration has no obligation to investigate. However, it is sufficient, for example, that an employee is asked "to find out more about the organizational structure from the documents handed over to him or from the intranet accessible to him, provided that these sources show who is actually holding the function associated with the power of representation"

"If the representative is appointed to a position that is usually endowed with a corresponding power of attorney, this [...] is equivalent to a notification of the authorization".

Employment Law

In working life, for example, this is possible because “the employer has certain employees - e. B. by being appointed as authorized signatory, general representative or head of the personnel department - has been appointed to a position that is usually associated with a right of termination. The internal transfer of such a function is not sufficient. It is necessary that it is also visible to the outside world in the company or that other notification is made. The recipient of the declaration must be informed that the declarer actually holds the position. "

  • Authorized Officer :
If a power of attorney is entered in the commercial register, it is sufficiently well known if the entry of the power of attorney was made more than 15 days ago ( Section 15 (1) sentence 1 HGB).
  • HR manager :
"If the employee is adequately informed about the person of the HR manager, he must deduce from his position alone that he has sole power of representation in relation to the workforce to issue dismissals".
  • Branch Manager :
Whether the position as branch manager is clearly associated with the right to terminate is an individual question. It was answered in the negative if the personnel department in a company is concentrated in a group company and the branch manager only reports 23 employees. It was also generally answered in the affirmative “A branch manager is generally entitled to terminate the contract”, but the title of “Contact Center Manager” is not sufficient.
  • HR Administrator :
A mere personnel administrator will usually not be regarded as having the right to terminate.

No breach of trust (§ 242 BGB)

Rejection according to § 174 BGB can be excluded according to § 242 BGB. This concerns exceptional cases. According to the BGH, a rejection according to "§ 242 BGB" is inadmissible if the recipient of the notice of termination has already repeatedly recognized the representative in the existing business relationship as such, even without submitting the power of attorney, as long as there is no reasonable doubt about the existence of the power of attorney.

It seems "unclear" whether there are cases of § 242 BGB.

Legal consequences

  • Consequences of an effective rejection in accordance with Section 174 sentence 1 BGB is - regardless of the existence of the power of attorney - the ineffectiveness of the legal transaction; a cure or approval according to § 177 BGB is ruled out. The legal transaction must therefore be carried out again, so that a preclusive period (for example: Section 626 (2) BGB) can no longer be observed.
  • If a legal transaction is not rejected or not rejected in time, it is legally effective, subject to other defects. In particular, an ineffectiveness according to § 180 sentence 1 BGB comes into consideration.

Burden of presentation and proof

Anyone who invokes the ineffectiveness according to § 174 BGB has to prove the timely rejection. Anyone who invokes the effectiveness in spite of a timely rejection has to prove the submission of a power of attorney or other notification or unfaithful behavior of the third party.

Individual questions

Public service

Section 174 BGB also applies to employers under public law.

Unreadable signature

"Was the employee acc. Section 174 sentence 2 BGB informed of the authorization, the rejection of the termination according to Section 174 sentence 1 BGB is not possible simply because the representative signed illegibly and the name is not otherwise mentioned in the letter of termination. "

See also

literature

  • Ulrich Price; Kevin Lukes: The rejection according to § 174 BGB , in: JA 2015, 900–905.
  • Christian Klostermann-Schneider: § 174 BGB: Rejection of the termination of an employment relationship made by the authorized representative and its limits. Peter Lang Verlag, Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Vienna 2015, ISBN 978-3-631-66555-8 .

Individual evidence

  1. ↑ BAG, judgment of April 14, 2011 - 6 AZR 727/09 - juris Rn. 20 = NZA 2011, 683
  2. ↑ BAG, judgment of September 20, 2006 - 6 AZR 82/06 - NZA 2007, 377 Os.
  3. ↑ BAG, judgment of January 12, 2006 - 2 AZR 179/05 - juris Rn. 33 = NZA 2006, 980 (982)
  4. ↑ BAG, judgment of September 20, 2006 - 6 AZR 82/06 - juris Rn. 52 = NZA 2007, 377
  5. ↑ BAG, judgment of April 25, 2013 - 6 AZR 49/12 - juris Rn. 134 = AP No. 1 to Section 343 InsO
  6. ↑ BAG, judgment of August 14, 2002 - 5 AZR 341/01 -, BAGE 102, 161
  7. ↑ See Preis / Lukes, JA 2015, 900 (901)
  8. ↑ Affirmed by cf. Preis / Lukes, JA 2015, 900 (901) with further references
  9. ↑ BAG, judgment of September 20, 2006 - 6 AZR 82/06 - juris Rn. 40 = NZA 2007, 377 (379 f.)
  10. ↑ BAG, judgment of February 10, 2005 - 2 AZR 584/03 - juris Rn. 52 mwN = NJOZ 2005, 4238
  11. ↑ Case according to Preis / Lukes, JA 2015, 900 (902 f.)
  12. ↑ BAG, judgment of February 10, 2005 - 2 AZR 584/03 - juris Rn. 51 mwN = NJOZ 2005, 4238; BGH, judgment of November 9, 2001 = MDR 2002, 269 = NJW 2002, 1194 = JuS 2002, 710 (K. Schmidt).
  13. ↑ So BAG, judgment of August 10, 1977 - 5 AZR 394/76 - AP ZPO § 81 No. 2
  14. ↑ See LAG Hamm, judgment of December 7, 1999 - 4 Sa 327/99 - NZA-RR 2000, 494 (495): Employer's attorney's power to terminate in a warning dispute based on the power of attorney presented
  15. ↑ LAG Rhineland-Palatinate [25. April 2013] - 10 Sa 518/12 - juris Rn. 26 = NZA-RR 2013, 406
  16. ↑ Lingemann, Protection against dismissal, 2011, part 2, marginal no. 34
  17. ↑ BAG, judgment of April 25, 2013 - 6 AZR 49/12 - juris Rn. 126 = AP No. 1 to Section 343 InsO
  18. ↑ LAG Mecklenburg-Western Pomerania, judgment of December 14, 1995 - 1 (3) Sa 734/94 - juris Rn. 43 = SpuRt 1998, 198
  19. ^ LAG Schleswig-Holstein, judgment of April 25, 2013 - 5 Sa 309/12 - juris Rn. 49
  20. ↑ BAG, judgment of January 12, 2006 - 2 AZR 179/05 - juris Rn. 36 = NZA 2006, 980 (982)
  21. ↑ BAG, judgment of January 12, 2006 - 2 AZR 179/05 - juris Rn. 36 = NZA 2006, 980 (982)
  22. ↑ BAG, judgment of April 14, 2011 - 6 AZR 727/09 - juris Rn. 23 = NZA 2011, 683
  23. ↑ LAG Niedersachsen, judgment of June 25, 2010 - 10 Sa 46/10 - NZA-RR 2011, 22 = juris Ls.
  24. ↑ LAG Berlin, judgment of June 28, 2006 - 15 Sa 632/06 - juris Ls. = NZA-RR 2007, 15
  25. ^ KG, judgment of August 3, 2009 - 12 U 96/09 - NJOZ 2010, 921
  26. ↑ BAG, judgment of September 25, 2014 - 2 AZR 567/13 - juris Os. = NZA 2015, 159
  27. ↑ BAG, judgment of April 14, 2011 - 6 AZR 727/09 - juris Rn. 27 = NZA 2011, 683
  28. ↑ BAG, judgment of September 25, 2014 - 2 AZR 567/13 - juris Rn. 26 = NZA 2015, 159
  29. ↑ LAG Berlin, judgment of June 28, 2006 - 15 Sa 632/06 - juris Ls. = NZA-RR 2007, 15
  30. ^ LAG Mecklenburg-Vorpommern, judgment of February 28, 2012 - 2 Sa 290/11 - juris Ls. = NZA-RR 2012, 350
  31. ^ LAG Mecklenburg-Vorpommern, judgment of February 28, 2012 - 2 Sa 290/11 - juris Ls. = NZA-RR 2012, 350
  32. ↑ BAG, judgment of May 30, 1978 - 2 AZR 633/76 - juris Rn. 19 = AP No. 2 to Section 174 BGB
  33. ↑ BAG, judgment of April 14, 2011 - 6 AZR 727/09 - juris Rn. 33 ff. = NZA 2011, 683
  34. ↑ BAG, judgment of April 14, 2011 - 6 AZR 727/09 - juris Rn. 34 = NZA 2011, 683; KG, judgment of August 3, 2009 - 12 U 96/09 - NJOZ 2010, 921
  35. ↑ Price / Lukes, JA 2015, 900 (905)
  36. ^ LAG Rhineland-Palatinate, judgment of April 25, 2013 - 10 Sa 518/12 - juris Rn. 27 = NZA-RR 2013, 406
  37. ↑ BAG, judgment of January 12, 2006 - 2 AZR 179/05 - juris Rn. 33 = NZA 2006, 980 (982)
  38. ↑ BAG, judgment of September 20, 2006 - 6 AZR 82/06 - NZA 2007, 377 Os.