20. BE: Mandate

Question 1

Mandate

Answer 1

K between a principal and mandatary conferring on the mandatary the authority to transact on behalf of the principal

may be either gratuitous or onerous

Question 2

Form Requirements for Mandate

Answer 2

generally NO no form requirements — ORAL OK

exception = equal dignities

Question 3

Equal Dignities Exception

Answer 3

if act to be performed by mandatary must be in a certain form, the act creating the mandate must be in that form

Question 4

Mandatary’s Authority

Answer 4

principal may confer general authority on the mandatary to do whatever he thinks is appropriate

mandatary can do all acts incidental or necessary for performance

EXCEPTIONS…

Question 5

Exceptions to Mandatary Authority

Answer 5

= EXPRESS AUTHORITY REQUIRED FOR:

• acquiring, alienating, encumbering, or leasing ANY property
• making an inter vivos donation
• accepting or renouncing a succession
• contracting a loan, or acknowledging or remitting debt
• becoming a surety
• making or endorsing promissory note or negotiable instrument
• entering compromise/ arbitration
• making health care decisions

Question 6

Duties of Mandatary

Answer 6

fulfill mandate and act with prudence and diligence

Question 7

Mandatory Exceeding Authority

Answer 7

mandatary who exceeds his authority is liable to principal for ANY LOSS

mandatary does NOT exceed his authority when result of act is MORE ADVANTAGEOUS than authorized act

Question 8

Duties of Principal

Answer 8

• must perform obligations mandatary contracted within their authority
• bound for post-termination obligations if mandatary was unaware of termination when contracted
• must REIMBURSE for expenses/charges/ remuneration
• exceeded authority? principal not bound unless he RATIFIES those acts

Question 9

Mandatary’s Obligations to 3P: disclosed mandate and disclosed principal

Answer 9

mandatary is not personally bound

Question 10

Mandatary’s Obligations to 3P: undisclosed mandate

Answer 10

mandatary IS personally bound

Question 11

Mandatary’s Obligations to 3P:
disclosed mandate and undisclosed principal

Answer 11

mandatary is personally bound until identity of principal is disclosed to 3P

Question 12

Exception to Personal Liability

Answer 12

1. 3P knew that mandatary was exceeding authority
2. principal ratifies contract

Question 13

Obligations of Principal to 3P

Answer 13

principal is generally bound to 3P for all contracts made by mandatary within limits of his authority

is there apparent authority?

Question 14

Apparent Authority

Answer 14

principal gives GF 3P reason to believe another person is mandatary

Question 15

Obligations of 3P to Principal

Answer 15

3P who contracts with mandatary is bound to principal, if mandatary contracted in principal’s name

EXCEPTION, 3P not bound IF: undisclosed mandate and obligation is strictly personal

Question 16

Termination of Mandate

Answer 16

1. DEATH of either principal or mandatary
2. INTERDICTION of either party
3. NOTICE of termination

Question 17

Mandatary Authority Continues When:

Answer 17

1. 3P lacks knowledge of termination
2. principal dies and failure to act hurts the principal’s interest
3. relying on public records – if mandate filed
4. mandatary lacks knowledge of termination in GF

Question 18

Management of Affairs/ Acting Without Authority in Exigent Circumstances

Answer 18

person acts without authority to protect the interests of another,in reasonable belief that owner would approve of action

• manager must promptly GIVE NOTICE to the owner and await further directions, unless there is immediate danger
• must exercise care of prudent administrator
• owner must fulfill obligations and reimburse manager for all necessary and useful expenses