18 June 2022

Power: Mandate and proxy

in99’s advice -

Jessica Garcia

When it comes to formalizing a power of attorney, many doubts can arise. What powers should be included, Does it cost money? Is it revocable?. At in99 we have found the solution to ironing out the issue of power of attorney when it comes to claiming and defending your rights.

What is an apud acta?

This is a power of attorney that is granted so that lawyers can represent you. If you make a claim with us, we will ask you for it. It’s a very important document that we need, to be able to carry out your claim. It’s free of charge, and we can take care of generating it for you 100% online so you don’t have to worry about anything.

Believe it or not, it’s very likely that you have something to claim for in Spain – you just don’t know it yet. Now you can find out by answering a few simple questions, in less than 99 seconds, and at no cost and with no obligation. You may reclaim money you didn’t expect. And you’ll also find out the current protection level of your interests.

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Our laws help us to carry out the terms by which one person empowers another to execute certain legal acts on their behalf. Unlike mediation or brokerage contracts, a lease of services or a labour contract, both the mandate and the power of attorney can be signed by individuals and professionals with no previous employment relationship, based on trust and the need for certain legal representation.

Let’s have an in-depth look at the mandate and power of attorney, as enshrined in the Spanish Civil Code:

What is a mandate?

A mandate is when a person is obliged to carry out, on their own behalf or on behalf of another, acts or services relating to the management of one or more matters, with or without payment. In other words, the purpose of a mandate is to hire a person to provide a service or to do something, in his or her own name, or on behalf of a represented party.

In it two parties are involved:

  • The representative, who works in the name of another.
  • The represented, on whose behalf the work is done.

An example of a mandate: a creditor who authorises a person to process the collection of his debt.

  

Characteristics of a mandate

  • It is based on trust.
  • It can be free or paid.
  • It requires the acceptance of the representative.
  • It creates specific obligations: generally speaking, a mandate covers no more than administrative factors. To sell, mortgage or carry out another specific legal process, you need a written mandate. Here, you must specify the kind of services or representation you need.
  • It can be with or without representation:

A “simple” mandate, without representation, is when no power of attorney is granted, or if it is granted, it is not used by the representative. The representative communicates with third parties in their own name –  acting on behalf of the represented, but in their own name.

A “representative mandate” or mandate with representation,  when the representative works on behalf of the represented and in the name of the client.

  • This can be authorised for any kind of legal act, except for carrying out the personal obligations of the represented.  

Representative’s obligations

 

  1. Their #1 obligation is to carry out the order of the client.
  2. In the case that the representative does not carry out the terms of the contract as stated in the mandate, they are responsible for the damages caused to the represented.
  3. Responsibility in the case of a simple mandate: when the representative acts in his own name, the represented has no action against the people with whom the representative has contracted, nor have they against him. They are not contractually bound.
  4. Accountability: Every representative is obliged to give account of their operations. They must also pay to the represented all that they have received according to the contracts carried out.

Represented’s obligations

  1. To pay the representative his full fee, in cases where appropriate.
  2. To pay the representative in advance the amounts necessary for the execution of the mandate. If the representative has already paid expenses in order to carry out the mandate, the represented must reimburse them even in the case of an unfavourable result, provided that it was not the representative’s fault.
  3. The represented must also indemnify the representative from all damages caused by the fulfilment of the mandate, if it was not the representative’s fault, or if no imprudence was committed.

 

Power of attorney: Proxy or representation

Power of attorney contracts are much like mandates. The main difference is that the mandate is a contract for the carrying out of an obligation specified by the two parties, and therefore requires acceptance of the representative. Meanwhile, the granting of power of attorney is a declaration of unilateral will of the one who wants to be represented. It does not require acceptance by the proxy because a specific obligation is not agreed, but rather general and various actions are to be performed on behalf of the represented.

For example, the power to administer a company allows the proxy to sign agreements and contracts (contract obligations) on behalf of the represented.

Two parties are involved in the Proxy:

  • The representative (proxy), who works on behalf of another.
  • The represented (principal), in whose name the representative acts.

 

Characteristics of the Proxy

  • This contract gives the representative the power to act on behalf of the represented person. It gives them the power to conclude ongoing legal acts as if they themself had carried them out. This does not require any acceptance by the representative.
  • The contract will outline what kind of acts are allowed and which are not, depending on whether the power is general or specific. There is a fair amount of room for manoeuvre.
  • The representative will hire third parties on behalf of the person to whom he represents, therefore, the obligation binds the represented and said third parties.
  • The representative is left out of the contract, responding only to his principal for those acts that exceed the power for which he was hired.

 

The proxy can be used for:

  • Cessation of certain actions.
  • Waiving rights on behalf of another person.
  • Carrying out tax obligations.
  • Requesting a rebate or reimbursement.

 

Mandate and proxy requirements

Both mandates and the granting of power of attorney only need two people: one who gives precise instructions, and another who is able to carry them out. These contracts both involve the granting of powers, and in both cases the two parties carry out mainly the same function, even if these functions can be ‘mixed’ like we saw before with the ‘mandate with representation’.

Form of mandate and proxy

Both the mandate and the granting of power of attorney can be made:

  • Expressly or tacitly.
  • Verbally or in writing.
  • Marriage contracts, general power for lawsuits, the administration of assets and any other process which involves a written legal act, or which may harm third parties, must involve the presentation of a written public document.

 What if you find out what you can claim?

By answering a few simple questions you will find out what you can claim and the current protection level of your interests in Spain. At no cost and with no obligation. In less than 99 seconds, you will receive a tailor-made diagnostic report.

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There is no time like the present to claim on the unfair terms of your mortgage

If you have or have ever had a mortgage, it is very likely that you have been affected byunfair terms.

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