Chapter 5 - Mandates Flashcards
What is a Mandate?
Mandate is a contract between two persons: the mandator and the mandatary.
The mandator hires a mandatary to represent him in dealing with an outisde party, the thirds person. the mandatary, by his acceptance, binds himself to exercise the power.
Mandate Terminology
Quebec / Civil law: “mandate”
Common law: “contract of agnecy”
*Mandator = principle
*Mandatary = agent
Characteristics: Objectives
*Representation for legal acts
*Protection due to incapacity
Characteristics: Formation
*Express v. Tacit
* Formed like any other contract, demanding consent of both parties
Where a contact of mandate is in written form, it is reffered to as “power of attorney”
Characteristics: Renumeration
*By Gratuitous title or Onerous
Between two random individuals, it is assumed to be gratuitous, but in a professional mandate, it is presumed to be onerous.
Renumeration should be stated in the written contract of mandate.
Characteristics: Scope
- Special mandates - used for a specific task (i.e. sell my television) You know what you are hired to do and how you will do it
- General manadates - covering all business activities Less detailed, you are just there to manage and maintain (i.e hiring someone to collect rent)
Express v. Inferred power
Within a mandate, the mandatary is deemed with the power to cover all tasks which are incidental to the mandate.
Express - powers are limited to what is expresed clearly in the mandate
Inferred - activities that they’ll have to take that aren’t expressed (all professional mandates are asusmed to be inferred)
Mandatary Obligations
- Prudence and Diligence - must act in a resonable manner and perform to best of your ability
- Honesty and Faithfulness - always work with the mandator best interest in mind
- Substitue Manadatary - need permission of mandator, without consent, the mandatary is responsible for all of the substitutes damage.
- Double Mandates - acting on behalf of all parties & can manipulate. Only allowed if all parties are aware of the situation, if not you can ask to nullify the mandate.
- Confidential information and Property - may not use the information of property of the mandatre for personal gain.
- Mandatary as a contracting party - not allowed
Furthermore, the mandatary must do the work themselves, in person and must keep the mandator informed.
Conditions allowing the Mandatar to use Mandator’s property
- Mandate authorizes it
- Mandator approves after the signing of the mandate
- Law forsees the use of the property. (i.e. you personally pay for supplies - at the end of mandate, you can hold back revenue for the expenses)
Mandatarty: closing the mandate
- You must render the account and rerun all property.
- report all of what has happened, summarize the outcomes
Mandator Obligations
- Expenses & Renumeration - must cooperate with mandatary to facility the demanded performance, to reimburse expenses and pay based on “performance of best of abilities” (exept commission based like real estate)
- Ratification - The mandator is liable for the acts performed by the mandatary within the limits of the mandate (injury) - if there are several mandators: “solidarity”
Mandator Liability to Mandatar
- Liability to the mandatary - mandator is not liable if mandatary acts outside of the mandates schope unless
- Mandator approves of actions
- Mandatary didn’t know the mandate ended
- Mandatary’s actions bring advantages.
Mandatary’s obligations towards the third persons.
A mandatary who acts within his mandate and doscloses the mandate to the third person is not personally liable to the third person.
A mandatarys IS personally liavle if they exceed the mandate exept if
*Mandator ratifies the act (3 conditions)
* Thirs party knew the limits of the mandate
Mandatary concealing the name of the mandator
A mandatary may agree to conceal the name of the mandator to the third person, in which case the mandatary becomes personally liable to the thirs person.
Mandator’s obligations towards the third parties.
- Mandator is liable for the acts of the mandatary - expet when mandatary is acting in their own name, they act outside of mandate - with their respective conditions
- Injury - Mandator is responsible for all injury caused by the mandatary expet if
- the injury was unpreventable
- if it occurs outside of mandates scope where not ratified.
Apparent Mandates
An apparent mandate may occur when
- when you allow it to be belived that another person is your mandatary, and
- this person is not actually your mandatarym and
- you enter into an agreement with a third person who is acting in good faith.
Termination of a Mandate
A mandate may be terminated at any time by any party.
- the party terminating the mandate could be liable for any damages that are the result of the termination if not given sufficient reasonaing or time.
- Mandates are terminated in the result of death, bankrupcy of either party
