Mandate Flashcards
Form Requirement
none!
*Exception: Equal Dignity Doctrine
Equal Dignity Doctrine
if any type of act must be in a specific form, the mandate authorizing that act must be in that same form (ex: selling an immovable mandate must be in writing)
Recordation of Mandate
mandate authority is NOT required to be recorded to affect 3rd parties, even as to immovables
however, if mandate authority IS recorded, if it is modified or terminated the update must be recorded as well, otherwise 3rd parties are entitled to rely on the old form of mandate recorded
Mandatary Authority
can be general or specific (and includes all acts “incidental or necessary” for performance of mandate
some acts need specific, express authority to authorize
Mandatary Authority: Express Authority Needed for…
(1) acquiring/alienating/encumbering/leasing ANY property (movable/immovable)
(2) making an inter vivos donation
(3) accepting or renouncing a succession
(4) contracting a loan or acknowledging/remitting a debt
(5) becoming a surety
(6) making/endorsing a promissory note or negotiable instrument
(7) entering a compromise or agreeing to arbitration
(8) making healthcare decisions
Duties of Mandatary
(1) fulfill the mandate and act with diligence and prudence
(2) give information to the principal
(3) deliver property gained from the mandate (less expenses)
Exceeding Scope of Mandatary Authority
mandatary is liable for any loss resulting from exceeding the scope of authority
*mandatary’s acts do not exceed authority when “he fulfills his duties in a manner more advantageous to the principal than what was authorized”
Duties of Principal
(1) bound to the mandatary to perform obligations (unless mandatary’s actions are beyond the scope of his authority; but P is still liable for actions beyond the scope if P ratifies the actions)
(2) duty to reimburse the mandatary for expenses/charges/remuneration and any loss sustained by the mandatary that was not his fault
Obligations of the Mandatary to 3rd Persons
Four situations:
(1) disclosed mandate + disclosed principal = mandatary is NOT bound to 3rd person
(2) disclosed mandate + undisclosed principal = mandatary is bound until the identity of the principal is revealed
(3) undisclosed mandate (mandatary contracting in his own name on behalf of the principal) = mandatary is bound to the 3rd person
(4) acts of mandatary exceed the authority of the mandate = mandatary is bound to 3rd person
*Exceptions:
(a) 3rd person knew that the mandatary was exceeding his authority, or
(b) principal ratifies the act
Obligations of the Principal to a 3rd Person
principal is generally bound for all acts executed by mandatary within the mandatary’s scope of authority
Putative Mandate: if principal causes a good faith 3rd party to believe that another person is his mandatary = the putative principal is bound to the mandatary’s acts
Obligations of the 3rd person to Principal
(1) disclosed mandate + disclosed principal = 3rd party is bound to principal
(2) disclosed mandate + undisclosed principal = 3rd party is bound to principal
(3) undisclosed mandate = 3rd party is bound to principal UNLESS obligation is strictly personal or right is unassignable (in that case, 3rd party is bound to mandatary)
Termination of Mandate
(1) death of the principal or the mandatary
(2) interdiction of mandatary
(3) appointment of curator of principal if interdicted
(4) notice of termination by either party (no form required!)
Exceptions:
(1) 3rd party not notified by the principal of termination (principal is still bound)
(2) principal dies and mandatary must continue acts undertaken before the principal’s death if delay would injure principal’s interests
(3) still bound to 3rd persons if mandate was recorded until recordation is modified/terminated
(4) mandatary is unaware of termination (principal is still bound if mandatary acts in good faith)
(5) principal lacks capacity and mandatary notifies another mandatary, successor mandatary, or a person with sufficient interest in the wellbeing of the principal
Management of Affairs
ex: neighbor paying someone to board up your house before a hurricane
manager acts without authority on behalf of owner in the reasonable belief that the owner would approve of the act if made aware
manager MUST give notice to owner unless there is immediate danger
Management of Affairs: Duty of Manager
prudent administrator, liable for any loss
Management of Affairs: Duty of Owner
fulfill obligations that the mandatary has undertaken as a prudent administrator
reimburse owner for necessary and useful expenses
