mandate Flashcards
how can representation occur
operation of law or by juridical act
what is the definition of mandate
it is a contract b/w a principal and a mandatary conferring the mandatary the authority to transact on behalf of the principal
what are the two types of mandate
- gratuitous
- onerous
what are the form requirements for mandate
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)
what is the general rule as to the mandatary’s authority
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
what certain acts cannot be performed without express authority
- acquiring, alienating, encumbering, or leasing property
- making a DIV
- accepting or renouncing a succession
- contracting a loan, or acknowleding or remitting a debt
- become a surety
- making or indorsing a promissory note or negotiable instrument
- entering into a compromise or agreeing to arbitration
- making health care decisions
what are the mandataries duties
- duty to act with prudence and diligence
- duty to give information
- duty to deliver to principal
what are the consequences for breaching the duty to act with prudence and diligence
mandatary is liable to the principal for the principal’s losses
can the mandatary appoint a substitute
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
when is a mandatary not liable for the substitute
when mandatary was expressly authorized to appoint a substitute and the mandatary exercised diligence in choosing and instructing the substitute
what are the details of the duty to give information
bound to give information to the principal, to account for his performance, and to notify the principal when he has fulfilled his responsibilities
what must the mandatary deliver to the principal
all that the mandatary has received on account of the mandate, less expenses and remuneration
what is mandatary liable for if they exceed their authority
liable to the principal for any loss the principal has sustained
can the mandatary recover for any loss sustained because they exceeded their authority
he cannot recover from the principal unless the principal ratifies the unatuhorized acts
when does a mandatary not exceed his authority
when he fulfills his duties in a manner more advantageous to the principal than what was authorized
what are the principal’s duties
- liability for obligations
- duty to reimburse mandatary
when is the principal bound for obligations
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
what is the principal’s liability for obligations contracted after termination of mandate but before the mandatary knows of the termination
principal bound to the mandatary for those obligations
when is the principal bound for obligations the mandatary contracted beyond his authority
if the principal has ratified them
what must the principal reimburse the mandatary for
expenses and charges and for any remuneration to which he is entitled; also, loss sustained without fault
what is the mandatary’s liability for disclosed mandate and disclosed principal
if the mandatary’s acts are authorized, the mandatary is not personally bound to the third person; only the principal is bound
what is the mandatary’s liability for undisclosed mandate
if the mandatary contracts with a third party in his own name without disclosing the mandate, he is personally bound to the third party
what is the mandatary’s liability for disclosed mandate but undisclosed principal
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
what are the exceptions for when a mandatary is not personally bound to a third party by exceeding his authority
- where the third party knew that the mandatary was exceeding his authority
- where the principal ratifies the contract
what are the obligations of the third party to the principal
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
when is the third party bound to the principal for an undisclosed mandate
bound unless the obligation is strictly personal or the right is assignable
what are the general rules for terminating a mandate
- death of either the principal or mandatary
- interdiction of the mandatary or qualification of the curator after interdiction of the principal
- notice of termination by either party
even when the mandate has terminated by one of the permitted methods, when does the mandatary’s authority continue
- third party not notified of termination –principal bound by any contracts entered into by mandatary
- 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
- PRD –revocation or modification must be recorded to affect third parties
- mandatary unaware of termination – any contracts entered into in good faith with third parties are binding on principal
- if mandatary has reasonable grounds to believe that the principal lacks capacity, the mandatary may not simply terminate and walk away
when is mandatary’s termination effective for principal that he believes lacks capacity
only when he notifies another mandatary, a designated successor mandatary, or another person with a sufficient interest in the welfare of the principal
what are the governing rules for a management of affairs
