Misc. Code III Topics Flashcards
Mandate
Mandate is a form of representation. Representation occurs when one person represents another in that person’s legal relations.
Mandate is a contract between a ‘principal’ and a ‘mandatary’ conferring on the mandatary the authority to transact on behalf of the principal.
Form of Contract of Mandate
Mandate has no form requirements, so oral mandate can be enforceable.
Equal Dignity Exception – if act to be performed is one that must be in a certain form, act creating mandate must be in that same form. (Ex; mandate to sell or buy immovable property must be in writing)
- If mandatary is to be authorized to sell, acquire, encumber, or lease property, mandate authority must be expressly given.
Mandatary’s Authority
Principal may confer general authority to mandatary to do whatever s/he thinks is appropriate. Mandatary can do any acts that are either incidental or necessary for performance of his mandate.
Following acts require express authority of principal:
- Acquiring, alienating, encumbering, leasing property,
- Making an inter vivos donation,
- Accepting or renouncing a succession,
- Contracting a loan, acknowledging or remitting a debt,
- Becoming a surety,
- Making or indorsing a promissory note or negotiable instrument,
- Entering into compromise or agreeing to arbitration,
- Making health care decisions.
Duties of Mandatary
- Duty to act with prudence and diligence and fulfill mandate.
a. Liable for breach, but judge can reduce liability if mandate was gratuitous.
b. Mandate can appoint substitute, but must notify principal and is liable for substitute. Not liable if substitute was expressly authorized and mandatary exercised diligence in choosing and instructing substitute. - Duty to give information to and account for principal.
- Duty to deliver to principal, minus expenses and remuneration
- Mandatary who exceeds authority is liable for any loss. If mandatary exceeds authority and sustains loss, no recovery unless principal authorized the act.
- Authority not exceeded if more advantageous manner employed.
Duties of Principal
Principal bound by obligations contracted by mandatary and acts performed by mandatary. Not bound by unauthorized acts absent ratification.
Duty to reimburse mandatary for expenses and charges, remuneration if specified, and any no-fault losses.
Relationships Between Principal, Mandatary, and Third Persons
Obligations created toward 3rd person depend on 3rd person’s knowledge of mandate and identity of the principal.
Obligations of Mandatary to Third Person
- If mandatary disclosed mandate and disclosed principal, and mandatary’s act authorized, mandatary not personally bound to third person, but principal is bound.
- If mandatary contracts in own name without disclosing mandate, he is personally bound to third party.
- If mandatary discloses mandate but not identity of principal, mandatary is personally bound until identity disclosed.
- Mandatary who exceeds authority is personally bound unless third party knows he is exceeding or where principal ratifies contract.
Obligations of Principal to Third Person
- Principal is bound to third person for all contracts made by mandatary within limits of his authority.
- If a ‘putative principal’ causes a good faith third person to believe someone is his mandatary, putative principal is bound.
Obligations of Third Party to Principal
Third party who contracts with mandatary bound to principal if mandatary contracted in principal’s name or mandatary disclosed mandate but not principal’s name.
a. If undisclosed mandate, bound unless obligation is strictly personal or right is unassignable.
Termination of Mandate
Mandate terminates on death of principal or mandatary, interdiction of mandatary or qualification of curator after interdiction of principal, or notice of termination by either party.
Even if mandate has terminated, mandatary’s authority continues if:
- Third party not notified of termination by principal
- Principal dies but mandatary involved in undertaking that would injure principal’s interests if delayed
- Mandate recorded (revocation/termination must be recorded)
- Mandatary unaware of termination and contracts in good faith
Deposit
Deposit = contract where depositor delivers movable to depositary for safekeeping. Depositary bound to return movable on demand. (Bailment)
i. Deposit can be onerous or gratuitous.
1. Onerous depositary bound to fulfill obligation with diligence and prudence. Grautitous bound to dispose in same care he uses for his own property.
2. Depositary liable for losses based on depositary’s breach of standard of care.
ii. Depositary cannot use deposited thing without express/implied permission
1. If deposited thing is consumable and depositary is permitted to consume, not deposit, but a loan for consumption.
iii. Depositary is bound to return thing at agreed-upon place (usually where deposit made). Costs of transportation borne by depositor.
1. Must also deliver all fruits received from deposited thing, and any value received on account of loss/deterioration (insurance proceeds)
iv. Deposit with Innkeepers – innkeeper who accepts personal belongings of guest is a compensated depositary. (Safe in room doesn’t count.)
1. Liable for non-deposited damaged or stolen goods, but limited to $500 if innkeeper provided safe deposit facility and gave notice of that facility’s existence.
Sequestration
Occurs when parties agree to deliver a contested thing to a depositary pending resolution of their dispute. Governed by rules of deposit.
Judicial Sequestration – court-ordered, governed by rules of deposit. Takes place according to rules in Code of Civil Procedure.
Loan for Use
Gratuitous contract where lender delivers nonconsumable thing to borrower, who must return it after he finishes using it.
Borrower must keep, preserve, and use as prudent administrator, and only use the thing according to its nature. Liable for any breach of duty.
Loan for Consumption
Contract where lender delivers fungible consumable to borrower, who is permitted to consume loaned thing(s) and replace them with things of same kind and quality
i. Borrower must deliver at time and place agreed upon and, if failure, is liable for interest from time of written demand.
Compromise
Contract where one or more parties make concessions to settle dispute or uncertainty concerning an obligation or legal relationship. Compromise only settles those differences party intended to settle.
Must be in writing or recited in open court and transcribed.
Also made when claimant of disputed or unliquidated claim accepts payment tendered with clearly expressed written condition that acceptance of payment will extinguish the obligation.
Compromise can be rescinded for vices of consent, but not for error in law or lesion.
Compromise precludes parties from bringing subsequent matter on issues compromised upon.
Does not effect a novation.
If compromise not performed, other party may seek to enforce compromise or dissolve it and enforce his original claim.
