Procuration

Power of attorney (Italian procura, power of attorney, procurare of latin, wear for some concern to Latin per, for, and Latin cura, care ) is a given in Germany, Austria and Switzerland in company by a businessman to employees, extensive business agency power. It represents, is as the power of attorney, a gewillkürte form of representation and its purpose is to offer the trade a basis for the representation of actions of commercial agents.

  • 5.1 internal relationship
  • 5.2 external relationship
  • 5.3 Abuse cases where the merchant is not required

Legal bases

The legal bases of power of attorney can be found in § 48 to § 53 HGB. She then authorized pursuant to § 49 para 1 HGB " to all kinds of judicial and extrajudicial transactions and legal acts, which the operation of a commercial business with them ." By use of the indefinite article " a commerce " wants to express that the manager also may enter into intersectoral transactions of the legislature. This is exactly what is denied to the officers, since the provision in § 54 para 1 HGB the definite article " the commercial enterprise " is used and thus its business limited to the Trade, in which he operates. The power of attorney is expressly (oral or written ) to supply ( § 48 para 1 HGB) and entered by the owner of the commercial activity in accordance with § 53 Section 1 of the German Commercial Code in the commercial register. This entry has only declaratory effect, as already established the formal appointment as authorized representative under commercial law attorney.

Scope

The provision of § 49 Section 1 of the German Commercial Code defines the scope of the power of attorney established mandatory, so that the authorized officer may, in this context act in legal transactions in the name and for the account of the merchant and the so- concluded transactions require the merchant and entitle ( § 164 para 1 BGB ). Even if the power of attorney in the internal relationship between merchant and authorized signatory is designed narrower than it provides the legal framework, the manager in external relations must make full use of the scope of its commercial law attorney, because § 50 HGB explains all the limitations of this power of attorney invalid. The business partners of the manager may readily rely on the statutory scope of the power of attorney and do not need the risk of a possible lack of power of representation to fear.

Not only all the standard and ordinary transactions are recorded by a senior officer, but all the shops that only indirectly relate to any commercial enterprise, so at least still be in a remote, loosely connected with him. The presence of a commercial transaction is suspected according to § 344 HGB. This far-reaching power of attorney enables the authorized officer in the position to carry out legally effective transactions that are far outside of the scope of his company. A fortiori, the power of attorney covers all business functions (procurement, production, sales, insurance or finance ). Also, organizational or labor actions are permitted under a power of attorney.

Excluded from the procurators are so-called basic and principal transactions. Basic business cover all acts relating to the trading business as such. These include in particular the strain and sale of real property ( § 49 para 2 HGB ) if the authorized officer is not expressly authorized authorized, but also the sale of the company, the admission of new shareholders, who filed for bankruptcy, the change of the legal form or amendment of the corporate purpose. Principal transactions are original business of the merchant, such as the creation of trade balances § 245 HGB, applications to the commercial register, which only the merchant can make effective ( § 29, § 31 HGB) or Granted power of attorney itself ( § 48 para 1 HGB). Also, the authorized officer is not exempt from the prohibition of self according to § 181 BGB. Performs the manager of the foregoing transactions from where he acts as representative without power under § § 177 et seq.

Species

Single procuration

Single power of attorney is the authority of a single person granted, allowing it to act of representation alone. This power of attorney has a comprehensive character.

Branch Executives

On store attorney power of attorney is a branch or office of a company limited ( § 50 paragraph 3 HGB). A power of attorney, which extends to all branches of a merchant, is called Procura Generale. The companies of the branches must differ by an additive, such as " branch Grenzach- Wyhlen ".

Power of Attorney

In the real Power of Attorney only two or more authorized officers for collective action authorized (§ 48 para 2 HGB; see overall representation ). The authorized officer must act jointly and sign together regularly.

Power of representation of the manager

An authorized officer may in particular

  • To all business lead,
  • Change drawing,
  • Processes lead,
  • Incur liabilities,
  • Close comparisons,
  • Grant powers of attorney, which have a smaller circumference than the power of attorney.

If he is entitled to self- hiring or firing of employees, applies to himself the Employment Protection Act restricted ( gratuitous termination against severance, § 14, paragraph 2, § 9 para 1 sentence 2 of the Consumer Protection Act ).

He may, however, perform any highly personal business of the farmer, which are by law reserved for the merchant. These include in particular

  • To cease operation of businesses that are focused on
  • Signing of the financial statements,
  • Power of attorney grant
  • Trade registry entries apply,
  • Eide afford for the merchant,
  • Insolvency request
  • Tax returns for the merchant sign.
  • Sell ​​real estate or mortgage, unless this would be the chief clerk allowed separately, § 49 para 2 HGB.

Unbeschränkbarkeit power of attorney to the outside

Internal relationship

In the relationship between merchant and proxies is a limitation of the power of attorney according to the scope, for example, through service or employment of the manager, is possible.

External relationship

Restrictions in the internal relationship are against third parties absolutely ineffective ( § 50 para 1 and 2 of the HGB ), hence concluded by the authorized officer without power of attorney transactions for the merchant are binding unless the business opponents had actual knowledge of the lack of power of representation (see also section about the abuse ). The manager is the merchant but then liable to pay damages.

Abuse cases in which the trader is not obliged

In an abuse of the power of attorney the principles of abuse of the power of representation are partially applicable. The following configurations are possible:

  • Collusion, the manager is consenting to the business opponents to harm the principal. In this case, the underlying transaction is in accordance with due moral standards. § 138 BGB void.
  • The manager exceeds his internal powers, and the business opponents that fact known. Here harms the evidence, that is, the obviousness of the lack of power of attorney, the legal transaction in any case, according to another view already grossly negligent ignorance. The legal consequences are controversial: After the represented opinion of the rules concerning the representative is the plea of estoppel under § 242 BGB, for a different opinion see without authority under § § 177 ff BGB analogous application.

Furthermore, there are cases in which the attorney neither gem. § 53 HGB entered in the commercial register was still the extinction of the power of attorney has found entry into the commercial register, the so -called secondary incorrectness of the Commercial Register. Here it is debatable whether the right business that a representative has made ​​after the expiration of such power of attorney, nevertheless acts against the person represented, ie whether § 15 paragraph 1 HGB is applicable. Affirming the applicability, the writing above applies also in this case.

Extinction of the power of attorney

The power of attorney expires at:

  • Change of the business owner
  • Business insolvency
  • Revocation
  • Termination of the service relationship of the manager
  • Setting of business operations or insolvency proceedings
  • Legal incapacity of the chief clerk
  • Sale of the trading business

In contrast, the power of attorney expires when not death of the business owner ( § 52 paragraph 3 HGB). This is thanks to the contractual authority to which the power of attorney belongs. The death of the principal does not change quite effective proxies given.

If, after revocation of the power of attorney no Deletion from the commercial register, third parties can to the continued existence of the power of attorney appointed ( § 15 para 1 HGB).

The power of attorney is not transferable to third parties.

Signature

The exercise of the power of attorney is made by adding a reference to the power of attorney to the name of the merchant ( the company ) and the name of the authorized signatory identified (§ 51 HGB). The addition is normally distributed (in Latin autoritate by proxy, German, with the power of a power of attorney ') with abbreviated ppa.

Executives in Switzerland

The concept of power of attorney is almost identical to that of the German law. The statutory provisions are found in OR Art 458-465. The scheme, as power of attorney is defined and how it is given, can be found in OR Art 458 The extent of the power of attorney is almost identical to the regular German law attorney. Peculiarities arise from OR Art 459 The deletion of the power of attorney must be strictly registered in the commercial register. If this does not happen, bona fide third parties may continue to rely on it.

Employment#Employee List of company registers Legal name (business) Giro
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