Ciurlik Marion
A power of attorney and representation in France
French Civil Code : from art 1984 to art
2010
Definition
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Problem → Power of attorney translation's in French :
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- « Mandat» (mandate)
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- « procuration»
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- « délégation de pouvoir » (delegation of power)
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Important economic tool
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Mechanism of conventional representation
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it exist also a legal mecanism of representation (parents,
tutor..)
Different kind of power of attorney Special law / Common law
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Movement of specialization because of the changement into a contract for pecuniary
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Many special statute, special law , special mandate
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ex : special power of attorney for real estate agents, tourism agent, insurance agents or commercial agents..
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The common law of power of attorney will be more and more poor and empty in French law
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We will study especially the mandate or procuration
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1) The qualification of this contract
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2) the conclusion of this contract
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3) the effect of this contract
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4) the end of this contract
I) The qualification
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ART 1984 CC : « ….give the power to an other people to do something with his name»
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3 elements should be present :
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1 → acccomplishment of legal act
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t o preserve the difference between mandate and the other kind of contract (« courtage » and
« contrat d'entreprise »)
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2 → the « mandataire » or the agent act in the name and on behalf of another person
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is it possible to have a mandate without representation ? No, it is the difference between the mandate and an other kind of contract : the « comission »
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3 → absence of subordination :
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the agent can be an employee of the principal or of the third people
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Exception : VRP → employee and agent in the same time
2) The conclusion :
1) substantive requirements :
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A) - the legal act to accomplish should be determinate or determinable
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→ difference between the mandate made with general terms (power to mad just administration act) and the express mandate (all the act) : art 1988 CC
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→ difference between special mandate (power to made special act) and general mandate (power to manage all the business) : art 1987 CC
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B) – the fees of the agent « mandataire » :
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art 1986 CC : « the power of attorney is normally conclued as a gratuitous contract ».
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Spirit of Civil Code : charitable contract : no salary for the « mandataire » or attorney-in-fact
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Now : the Attorney-in fact can collect fees, « honoraires »
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But the fees can be change by the judge if he thinks that they are too much expensive.
The conclusion
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2) the formal requirements :
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Principle for all contracts : consensualism
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no special form required (oral, written or tacit)
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exception : in a special mandate as for the real estate agent
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Question of the apparent mandate : without the will of the contractors
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Cours de cassation :ASS : 13 december 1962 : possibility to have a tacit contract if the third party thinks legitimy he is the « mandataire » or the agent.
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3) effects of the contract
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1) effects between parties
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A- Agent's (« mandataire ») obligations :
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- Agent 's personal execution of the mission
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- the agent should respects loyally the limit of power provided by the contract
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- debate : obligation of means or obligation of result ?
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- Art 1993 CC : the agent should inform the principal about what is accomplish and he received
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B) The principal's (« mandant ») obligation :
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The principal should give all the information, documents, helps in order to acheive the contract the mandate is a relationship base on trust.
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- obligation of refund and compensation
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- obligation to pay the agent ? Possible to pay or not, or possible to pay just in case of sucess
2) Effects on other people :
A)
Relationship between the agent (« mandataire ») and the third parties(« tiers ») :
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If the agent respect the limit of his power :
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He is not engaged to third parties (« tiers ») : no contractual relationship
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If he comits a tort : tort relationship between the agent and third parties
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If the agent did not respect the limit of power :
Tort relationship between the agent and third parties : he should compensate , remedies Exception if the third parties knows that the agent exceed his power
B) Relationship between the principal (« mandant ») and the third parties :Art 1998 CC :
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if the agent respect the limit of power : contractual relationship between the principal and third parties
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