Law of agency

The term of representation or representation is understood in the law the right business actions of a person (representative ) for another ( Represented ). The representative shall give the right commercial transaction; Thus, he concludes, for example, a contract with a third party. He was authorized by the principal to carry out this action against third parties. The legal consequences of action meet regularly but not the representatives themselves, but only the principal.

The delegate is required in such cases where the person represented in a position or is not unwilling to engage themselves in legal transactions. This can have legal reasons (eg legal incapacity of the person represented, such as when parents represent their minor child to a third party, § 1626, § 1629 I BGB ) or by actual circumstances of daily commerce are necessary (eg by the division of labor in an establishment where an employee is authorized to transact business for his employer, or in the absence of expert knowledge of his principal, which can be represented as a legal layman in a process at the conclusion of a settlement by a lawyer ).

The law requires the delegate is in German law in § § 164 ff.Vorlage: § § / Maintenance / juris - page BGB.

4.1 Multi-page legal transactions
4.2 Unilateral legal acts
4.3 Rights of third parties during the balance period
4.4 Claims of third parties against the representative without power

5.1 Differentiation of the extent of the power of attorney
5.2 Differentiation according to the circle of agents
5.3 differentiate between the authorizer
5.4 Special Cases 5.4.1 Insulated Power of Attorney
5.4.2 warrant authority

6.1 Real Act
6.2 Business Similar actions
6.3 messenger shaft
6.4 Acting under an assumed name
6.5 Indirect Representation

Legal Dogmatic derivation

After today, the prevailing opinion, the legal institution of representation can only be based on the so-called representation theory. Central argument of this theory is that in the case of representation, the representative of the legal transaction doer always and this his business Mr. represents both in will and in the statement. The representative there is from a strange -looking statement for the represented person not acting actively participate in legal transactions themselves. The opposing view is found in the so-called business Mr theory which states again that only the represented forms a legal transaction will and should be regarded as a legal transaction doer, while the representative acts only as an intermediary.

Facilities for effective representation

Admissibility of representation

In principle, the substitution is allowed for each legal transaction action. Exceptions to this principle are found only in highly personal transactions. This applies, for example, marriage, § 1311 BGB.

My declaration of intention of the representative

The so-called business men, to meet the legal consequences of business, does not own a legal transaction action before, but instead gives his representatives own declaration of intention, that is, it forms the business will itself and expresses this in the form of a declaration of intent. However, a strange declaration of intent is issued, then there is no substitution, but messengers shaft. Since the consequences of the action undertaken to meet the principal and not the agent, it is sufficient if the latter is limited legal capacity ( § 165 German Civil Code); a business incompetents, however, can not even act in legal transactions, therefore he can not be a representative.

Is the representative from a declaration, it is called an active representative ( § 164 I 1 BGB); he takes such a third party contrary, substitution of passive ( § 164 III BGB).

If, for the transaction made by the representatives on the crucial knowledge of particular circumstances in this case must always be tailored to the knowledge of the representative. One speaks of attribution of knowledge ( § 166 I BGB ), because of that very knowledge that the representative of the relevant circumstances, is attributed to the principal. However, the law has one exception to this rule ( § 166 II BGB ): If the representative basis of a specific transfer of the principal, so the knowledge of his principal shall prevail.

Obviousness of the representation

The representative acts on behalf of another - namely, on behalf of his principal. The fact that his actions procured externally, must protect the business partner, so the third party be obvious. However, it is not necessary that the foreign relatedness is expressly declared, unless this is already clear from the circumstances ( § 164 I 2 BGB). This so-called self-explanatory capacity is in addition to the protection of the business partner also the general interest of legal relations of legal clarity in the contractual relationships. To assess the obviousness through interpretation of the transaction based on the recipient horizon: All that matters is how the recipient of the Declaration could understand them.

An exception of obviousness is made generally at a so-called " business for whom it may concern ". These are everyday cash transactions that are processed immediately and where it is the third party regardless of who is his business partner.

Power of attorney

Furthermore, it must act within the power of attorney issued to him by the representative.

With the power of representation is either a by unilateral act granted so-called power of attorney ( § 166 II BGB ) or a legally granted power of attorney ( for example, the parents for their child, § 1626, § 1629 I BGB; carers for people with disabilities / mental or physical illnesses that can not get themselves their own affairs, § 1902 BGB). In the latter case one also speaks of a legal representative of the child or assisted.

Legal persons and total consultancy are of a purely legal entity itself is also not capable of action and must therefore always be represented by one of its institutions in legal relations. One speaks here of organschaftlicher representation. The question of which organ or which partner is authorized to represent, is regulated by law in these cases, such as in § 26 I 2 BGB for the club.

Internal and external relationships

In the delegate, a distinction between the so-called inner and outer relationship.

The internal relationship (also called base ratio ) refers to the relationship between principal and agent, while it is the external relationship to the relationship between representatives and business partners ( the "Third " ) is.

The basic ratio and the power of attorney are two transactions that do not depend on each other. Therefore, they must be considered separately; they are in this sense "abstract". Thus, a power of attorney, for example, also be effective if the underlying contractual relationship (such as a contract or order) is ineffective or if it is expired. This authorization shall nevertheless continue until it is revoked.

Issue

The power of attorney is granted in the form of a reception requiring free-form declaration of intent; it does not require acceptance.

Recipient of such a declaration may be the one to represent the declarant ( the agent ), or one third, which is to take place towards the dealer. In the first case we speak of an inner power of attorney ( § 167 I Var. 1 BGB), in the latter from an outside authority ( § 167 I Var. 2 BGB).

Basically, the appointment of a proxy is formless; it can therefore also be issued by conclusive action ( implied ). In exceptional cases, the law expressly prescribes a particular form, such as in commercial law at the senior officer, a special power of attorney of merchants ( § 48 I HGB).

The general rules concerning the nullity and the challenge is mistaken the empowering of the issuance, as applicable. Problems arise, if they already use was made of the power of attorney. It is disputed here, especially if a challenge is permissible and if so, whether that unfolds ex tunc or ex nunc effect and who is the real challenge opponents.

Duration / warrant liability

In favor of a legitimate third party, there are some regulations in § § 170 ff BGB, which can continue to be effective an already extinct power of attorney under certain conditions, ie normalize a warrant liability. If an external power of attorney granted effectively as both restrictions and amendments as well as the extinction of the power of attorney must be notified to the third party. This does not happen, so it applies with respect to the power of attorney remains in effect ( § 170 BGB).

In accordance with § 171 BGB the third party is also protected in its reliance on the existence of a power of attorney, if it has been announced by special notice to the third party or by public proclamation to an indefinite number of persons. Here, no efficacy of the proxy is different from the case of § 170 BGB provided.

Also, § 172 BGB provides the protection of the warrant liability under the condition that a form submitted already to the representative power of attorney was presented to the third party. The power of attorney expires only upon return of the certificate to the grantor ( § 175 BGB) or through the cancellation of the certificate ( § 176 German Civil Code), at the same time so that also ends the privileged nature of the third party. The confidence Furthermore, disappears as soon as the third party of the revocation of the proxy approaching by the authorizer.

The privileged nature of the third party for the cases of § § 170-172 BGB § 173 BGB ceases to apply under if it is in bad faith. This protection is dispensed with in the case of the opening of insolvency proceedings ( § 117 Insolvency Act ).

The provision in § 174 BGB reflects the fact that unilateral legal transactions that are made by an agent without authority, are generally not allowed and gives the counterparty the right to ask to see the power of attorney and to reject the deal immediately, the request should not be met.

Unless contractually agreed otherwise, the power goes out usually under § 168 S. 1 BGB with the completion of the share ratio, ie the representation of the underlying legal relationship between principal and agent. That may be about an order, or an employment relationship to be, under which the representatives worked.

The authorization may of course also be granted from the outset limited ( § 163 BGB) or under a condition subsequent within the meaning of § 158 II BGB, so that either the expiry of the period or the occurrence of the condition brings about the termination of his power.

Furthermore, the authorization may expire by revocation ( § 168 p 2, 3 BGB). The withdrawal is the same as issuing the power of attorney is a unilateral act, is thus effected by unilateral declaration of intent received needy. In accordance with § 168 BGB p 3, the provisions of § 167 I BGB shall apply, that is, that the grantor to revoke both the authorized representative and can explain to the third party. The power goes out in both cases. In general, a power of attorney is revocable, as it would speak against the interest of his principal, if he had to be represented eg by a person who no longer enjoys his confidence. Contractually, however, the irrevocability of the authorization are defined. Moreover, also for the reason relationship result ( § 168 sentence 2 of the German Civil Code ), that the agent has an interest in the existence of the attorney so that there is a finality here. Once the irrevocability of the economic freedom of the person represented, however, cuts, there is a case of moral standards within the meaning of § 138 BGB. However, If there are important reasons, including an irrevocable power of attorney may exceptionally be revoked.

In case of death or the onset of incapacity of the principal, the power of attorney does not go out in doubt as to what (675 BGB § 672 S. 1, §) is inferred from the rules for the order. However, if a death or legal incapacity of the representative, shall expire on a regular basis the contract (cf. § 673 S. 1 BGB ) and thus also the power of attorney.

Abuse of power of attorney

Incurred by the representative of shops for the person represented unfold even effects if the agent under the power of representation, but acted outside the members internally transfers. This is to protect the business partner, which is relied on the existence and extent of the power of attorney and generally not expected from the to make inquiries about the internal relationship. The privileged nature of the third party is omitted in two cases:

The transaction is closed by agent and third party with the premise to harm the represented (so-called collusion ). In such a case, the parties closed the transaction pursuant to § 138 I BGB is not worthy of protection and due to moral void.
The third party is acting in bad faith, ie either has actual knowledge of the excess of the allocated internally powers or just this excess is so obvious that he should have known.

Prohibition of Insichgeschäfts

As a self-dealing, we describe a legal transaction which makes a person with himself, the law distinguishes two cases. The self- contraction refer to operations made by the representatives on behalf of his principal with himself.

In the so-called multiple representation by the representative concludes, on behalf of his principal with himself on behalf of a third party from a business.

Basically self-dealing under § 181 BGB are ineffective. It is generally believed, however, that they can be approved by the principal; according to § 177 BGB. Exceptionally, such transactions are also effective if the undertaking is legally permitted, in particular because it only effects the performance of an obligation.

Legal consequences of substitution

Is a representation effectively, the closed business works directly for and against the principal. The legal consequences of legal transactions measure thus does not meet the representative, but only the principal. Even errors of the representative ff within the meaning of § § 119 BGB are the person represented attributed ( § 166 I BGB ), so that the latter is entitled to challenge and not the one who has actually submitted the declaration of intent.

In the absence of prerequisite for the effectiveness of substitution, as this may have several consequences.

If the obviousness of substitution not observed, there is a proprietary business of the representative, since the challenge is excluded 164 II BGB result of an error in such a case, according to §.
However, lacks the power of representation, the business usually is first rendered ineffective ( § 177 I BGB ). The rules concerning the representative does not approve of the business represented, as are to be applied without authority.
Unlike the legal situation is in cases in which the agent undertakes the business both on behalf of his principal, as well as in its own name; here take the consequences of both people.

The representatives meet exceptionally legal consequences from the business made when the pre-contractual relationship culpa liable for damages makes in contrahendo ( § 280 I, II § 241, § 311 III).

Representative without power ( falsus procurator )

If there is no power of attorney or is exceeded in the external relationship, the provisions of § § 177 ff BGB access.

Multi-page legal transactions

Multilateral transactions are initially rendered ineffective and may be approved by the principal ' ( § 177 I BGB ). The business men, the approval both to his representative as well as to the contractor explain (cf. § 182 I BGB ). If permission is denied, then the contract is final ineffective.

Unilateral legal

Basically, unilateral legal acts, made by a representative without power, according to § 180 BGB are invalid. Exceptionally, however, these transactions may be approved by the principal ( § 180, page 2, 3 BGB).

Rights of third parties during the balance period

As long as on the effectiveness of the business, nor a state of suspension, the third party may in accordance with § 178 BGB revoke the business ( by notice to the representative or the represented person ) or the principal; under § calling 177 II BGB to to express an opinion against him for approval. The request has the effect that the statement of the principal now only may be issued to the contractor and a two-week period begins, shall be deemed denied after the expiry of the permit. In addition, any statement regarding the approval, which has submitted to the request to his representative of the business Mr. ineffective, unless the third party had knowledge of this declaration.

Claims of third parties against the representative without power

The one third who has confidence that the business is valid, has against the representative without power of § 179 BGB entitled to performance of the contract or to claim damages, which he can choose between two alternatives. In the context of damages, the performance loss is to be replaced.

Is the representative at conclusion not known that he is acting without authority, he shall be required in accordance with § 179 II BGB only to compensate the damage in trust up to the amount of the settlement damage.

The claims of third parties omitted pursuant to § 179 III BGB if the third party on the effectiveness of the business is not worth protecting in his confidence. One such case is where the lack of power of representation was the third known or the circumstances he at least would have had to doubt this. Furthermore, a limited legal capacity representative is worthy of protection as the third party, unless the representation was made with the consent of the legal representative.

Types of powers of attorney

Various types are distinguished power of attorney right business members.

Differentiation on the level of power of attorney

The general power of attorney is a power of attorney, the general, so entitles the representative to carry out all transactions in which an agency is permitted.
The special power of attorney means a power of attorney which is limited to the performance of a particular business.
The genus power of attorney authorizes the representative to carry out all those transactions that belong to a particular class of transactions.
Finally, there are typed forms of proxy, whose scope is defined by law, such as commercial law, the power of attorney ( § 48 HGB) and the power of attorney ( § 54 HGB).

Differentiation according to the circle of agents

The individual mandate is issued by the Lord to a business 's sole representative.
In contrast, be authorized by a Joint Powers more authorized for only one representative to the common representation.

Differentiation by the authorizer

The approval by the principal's representative to the power of attorney is called the principal authority.
Grants the trustee in his turn to another person a power of attorney is called this power of attorney. The annual Lord must authorize his representative to delegate. This power is to be assumed to be present if there is no identifiable interest of the principal is in the affirmative to a personal perception by the agent. These two sub-cases must be distinguished: Grants of Representatives the power of attorney on behalf of the principal, so this power of attorney also acts directly on the latter.
If the power of attorney issued in its own name but the representative so it acts only indirectly (ie, through the main representative) for the principal.

Special cases

Isolated power of attorney

From an isolated power of attorney is when the power of attorney no contractual relationship is based precisely. So there is no reason for money, but only a power of attorney between principal and agent.

Warrant authority

Furthermore, the developed by the case law of the case warrant authority is important. These are those cases in which a priori neither a statutory nor a contractual power of attorney exists, the third parties with which the transaction is closed, but may be assumed due to the situation performers him that such is given.

Conditions for the adoption of a legal certificate authority, in addition to the lack of actual authority, that the trust of the third party is not already protected by the § § 171 to 173 BGB and the principal has set a legal appearance in some manner by, two variants are possible:

The apparent authority is required that the person represented, although had no knowledge of the action of the putative representative, but at a dutiful care could detect and prevent.
For the adoption of an estoppel is, however, requires that the represented knowledge of the actions of the " representative " has this and tolerates ..

In both cases, the third party must also have actually relied on the established legal appearance and have based on this his decision to enter into a business. Is the trust of the third party cause of the conclusion of the business have been so is the legal consequence according to prevailing opinion, if the other conditions are also present that a power of representation is assumed.

Accruals

Real Act

At Real Acts are not legal transactions, so that a proxy is not possible.

Business Similar actions

Business Similar actions are those actions that are not statements of intent, but these are very close, as they are regularly directed at setting a legal consequence. Here are the rules for substitution are accordingly applicable by analogy.

Messengers shaft

Is a messenger from the declaration of will of another, so it is not this to be a delegate. The delegate requires submitting a personal declaration of intent, the messenger but only receive a strange, already by another voter declaration of intent for the purpose of access to the addressee. This has inter alia means that the messenger has, for example, not have legal capacity, because it is not a legal transaction in the simple transmission. Other sequences are found in the area of faulty transmission and in reception and access a declaration of intent, but also in other areas.

Action under an assumed name

When speaking of "acting under an assumed name," so such cases are meant, in which the agent only uses a strange name, but are not authorized to represent in any way for the true bearer of this name. Whether and against whom acts completed in this way business depends crucially on how the Declaration receiver could understand the explanation of the actor.

A proprietary business of the agent is when this will close the deal for himself and his business partner that understands so ( name deception ).

A foreign business for the true bearers of the name is available, however, if it matters to the contractor to close the deal with that very person who pretends to be the doer ( identity deception ). This foreign business has effect for and against the true bearers of the name only when he has to be imputed to the business according to the principles of toleration and apparent authority is approved in accordance with § 177 BGB or analog. Otherwise, keep only the doer of the deluded business partners, whereby the rules concerning the representative shall apply mutatis mutandis without authority.

Indirect representation

If someone acts in legal transactions in its own name, but with the intention to represent another, one speaks of indirect representation. This is a misleading name, because it is not a delegate: One who performs the business in his own name, meet its legal consequences, while the supposedly represented does not enter into a legal relationship with the third party. Cases of indirect representation are about the Commission's sale pursuant to § 383 paragraph 1 HGB and the Fiduciary Trust.

Further Literature

Hans Brox, Wolf -Dietrich Walker: General Part of the Civil Code. Publisher Franz Vahlen. 36th edition. Munich., 2012. ISBN 978-3-8006-3976-2 ( para. 508-607 ).
John Wertenbruch: General Part of the Civil Code. Publisher C. H. Beck. 2nd edition. Munich., 2012. ISBN 978-3-406-63812-1 ( Chapter 8 ).
Achim Boenninghaus: Barbara C. II General conditions of validity of transactions. , 2008. Verlag CF Muller, Jehle Rehm GmbH publishing group Hüthig. Heidelberg, Munich, Landsberg, Berlin. ISBN 978-3-8114-7011-8 (Part 2 A. Rn. 13-47 and 3rd part A. Rn. 87-89 ).
Helmut Köhler: General Part of the Civil Code. 36th edition. Publisher C. H. Beck. Munich., 2012. ISBN 978-3-406-63798-8 ( Chapter 2, § 11).

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