mandate

Question 1

how can representation occur

Answer 1

operation of law or by juridical act

Question 2

what is the definition of mandate

Answer 2

it is a contract b/w a principal and a mandatary conferring the mandatary the authority to transact on behalf of the principal

Question 3

what are the two types of mandate

Answer 3

1. gratuitous
2. onerous

Question 4

what are the form requirements for mandate

Answer 4

no form requirements –oral mandate may be enforceable (subject to equal dignity rule which requires that the mandatary contract be in certain form if the act is subject to a certain form)

Question 5

what is the general rule as to the mandatary’s authority

Answer 5

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

regardless of whether the mandate was one of general authority, the mandatary can do any acts that are incidental or necessary to the performance of his mandate

Question 6

what certain acts cannot be performed without express authority

Answer 6

1. acquiring, alienating, encumbering, or leasing property
2. making a DIV
3. accepting or renouncing a succession
4. contracting a loan, or acknowleding or remitting a debt
5. become a surety
6. making or indorsing a promissory note or negotiable instrument
7. entering into a compromise or agreeing to arbitration
8. making health care decisions

Question 7

what are the mandataries duties

Answer 7

1. duty to act with prudence and diligence
2. duty to give information
3. duty to deliver to principal

Question 8

what are the consequences for breaching the duty to act with prudence and diligence

Answer 8

mandatary is liable to the principal for the principal’s losses

Question 9

can the mandatary appoint a substitute

Answer 9

absent contrary agreement, mandatary is bound to fulfill the mandate himself

can appoint a substitute only when unforeseen circumstances prevent the mandatary from performing his duties and is unable to communicate with the principal

Question 10

when is a mandatary not liable for the substitute

Answer 10

when mandatary was expressly authorized to appoint a substitute and the mandatary exercised diligence in choosing and instructing the substitute

Question 11

what are the details of the duty to give information

Answer 11

bound to give information to the principal, to account for his performance, and to notify the principal when he has fulfilled his responsibilities

Question 12

what must the mandatary deliver to the principal

Answer 12

all that the mandatary has received on account of the mandate, less expenses and remuneration

Question 13

what is mandatary liable for if they exceed their authority

Answer 13

liable to the principal for any loss the principal has sustained

Question 14

can the mandatary recover for any loss sustained because they exceeded their authority

Answer 14

he cannot recover from the principal unless the principal ratifies the unatuhorized acts

Question 15

when does a mandatary not exceed his authority

Answer 15

when he fulfills his duties in a manner more advantageous to the principal than what was authorized

Question 16

what are the principal’s duties

Answer 16

1. liability for obligations
2. duty to reimburse mandatary

Question 17

when is the principal bound for obligations

Answer 17

bound to the mandatary to perform the obligations that the mandatary contracted within the limits of his authority, even if the mandatary is unsuccessful in his tasks

Question 18

what is the principal’s liability for obligations contracted after termination of mandate but before the mandatary knows of the termination

Answer 18

principal bound to the mandatary for those obligations

Question 19

when is the principal bound for obligations the mandatary contracted beyond his authority

Answer 19

if the principal has ratified them

Question 20

what must the principal reimburse the mandatary for

Answer 20

expenses and charges and for any remuneration to which he is entitled; also, loss sustained without fault

Question 21

what is the mandatary’s liability for disclosed mandate and disclosed principal

Answer 21

if the mandatary’s acts are authorized, the mandatary is not personally bound to the third person; only the principal is bound

Question 22

what is the mandatary’s liability for undisclosed mandate

Answer 22

if the mandatary contracts with a third party in his own name without disclosing the mandate, he is personally bound to the third party

Question 23

what is the mandatary’s liability for disclosed mandate but undisclosed principal

Answer 23

if the mandatary informs the third party that he is acting as mandatary for a principal whose identity he does not disclose, the mandatary is personally bound to the third party until the identity of the principal is disclosed to the third party

Question 24

what are the exceptions for when a mandatary is not personally bound to a third party by exceeding his authority

Answer 24

1. where the third party knew that the mandatary was exceeding his authority
2. where the principal ratifies the contract

Question 25

what are the obligations of the third party to the principal

Answer 25

bound to the principal if the mandatary contracted in the principal’s name or the mandatary disclosed the mandate but not the identity of the principal

Question 26

when is the third party bound to the principal for an undisclosed mandate

Answer 26

bound unless the obligation is strictly personal or the right is assignable

Question 27

what are the general rules for terminating a mandate

Answer 27

1. death of either the principal or mandatary
2. interdiction of the mandatary or qualification of the curator after interdiction of the principal
3. notice of termination by either party

Question 28

even when the mandate has terminated by one of the permitted methods, when does the mandatary’s authority continue

Answer 28

1. third party not notified of termination –principal bound by any contracts entered into by mandatary
2. when mandate ends due to the principal’s death, mandatary must complete any undertakings commenced prior to principal’s death if delay would injure the principal’s interest
3. PRD –revocation or modification must be recorded to affect third parties
4. mandatary unaware of termination – any contracts entered into in good faith with third parties are binding on principal
5. if mandatary has reasonable grounds to believe that the principal lacks capacity, the mandatary may not simply terminate and walk away

Question 29

when is mandatary’s termination effective for principal that he believes lacks capacity

Answer 29

only when he notifies another mandatary, a designated successor mandatary, or another person with a sufficient interest in the welfare of the principal

Question 30

what are the governing rules for a management of affairs