1. Ciurlik Marion A power of attorney and representation in France French Civil Code : from art 1984 to art 2010

2. Definition ● Problem → Power of attorney translation's in French : ● - « Mandat» (mandate) ● - « procuration» ● - « délégation de pouvoir » (delegation of power) ● Important economic tool ● Mechanism of conventional representation ● it exist also a legal mecanism of representation (parents, tutor..)

3. Definition of a mandate or a procuration ● 1) Agreement between the agent « mandataire » and the principal « mandant » ● + ● 2) an other agreement between the agent « mandataire « and someone « le tiers » ● = 3) the « tiers » or the other person will be linked with the principal « mandant » There are various types of powers of attorney and the one that you choose depends on the requirements of your current situation. ● Art 1984 CC : « the mandate is an act which allows someone ● « mandataire » (the attorney-in-fact or the agent) ● to give to « un tiers » (another people) the power to do something ● for the « mandant» (the principal) and with his name. » ● Relationship between 3 peoples :

4. Different kind of power of attorney Special law / Common law ● Movement of specialization because of the changement into a contract for pecuniary ● Many special statute, special law, special mandate ● ex : special power of attorney for real estate agents, tourism agent, insurance agents or commercial agents.. ● The common law of power of attorney will be more and more poor and empty in French law ● We will study especially the mandate or procuration ● 1) The qualification of this contract ● 2) the conclusion of this contract ● 3) the effect of this contract ● 4) the end of this contract

5. I) The qualification ● ART 1984 CC : « ….give the power to an other people to do something with his name» ● 3 elements should be present : ● 1 → acccomplishment of legal act ● t o preserve the difference between mandate and the other kind of contract (« courtage » and « contrat d'entreprise ») ● 2 → the « mandataire » or the agent act in the name and on behalf of another person ● is it possible to have a mandate without representation ? No, it is the difference between the mandate and an other kind of contract : the « comission » ● 3 → absence of subordination : ● the agent can be an employee of the principal or of the third people ● Exception : VRP → employee and agent in the same time

6. 2) The conclusion : 1) substantive requirements : ● A) - the legal act to accomplish should be determinate or determinable ● → difference between the mandate made with general terms (power to mad just administration act) and the express mandate (all the act) : art 1988 CC ● → difference between special mandate (power to made special act) and general mandate (power to manage all the business) : art 1987 CC ● B) – the fees of the agent « mandataire » : ● art 1986 CC : « the power of attorney is normally conclued as a gratuitous contract ». ● Spirit of Civil Code : charitable contract : no salary for the « mandataire » or attorney-in-fact ● Now : the Attorney-in fact can collect fees, « honoraires » ● But the fees can be change by the judge if he thinks that they are too much expensive.

7. The conclusion ● 2) the formal requirements : ● Principle for all contracts : consensualism ● no special form required (oral, written or tacit) ● exception : in a special mandate as for the real estate agent ● Question of the apparent mandate : without the will of the contractors ● Cours de cassation :ASS : 13 december 1962 : possibility to have a tacit contract if the third party thinks legitimy he is the « mandataire » or the agent. ●

8. 3) effects of the contract ● 1) effects between parties ● A- Agent's (« mandataire ») obligations : ● - Agent 's personal execution of the mission ● - the agent should respects loyally the limit of power provided by the contract ● - debate : obligation of means or obligation of result ? ● - Art 1993 CC : the agent should inform the principal about what is accomplish and he received ● B) The principal's (« mandant ») obligation : - The principal should give all the information, documents, helps in order to acheive the contract  the mandate is a relationship base on trust. - - obligation of refund and compensation - - obligation to pay the agent ? Possible to pay or not, or possible to pay just in case of sucess

9. 2) Effects on other people : A) Relationship between the agent (« mandataire ») and the third parties(« tiers ») : If the agent respect the limit of his power : - He is not engaged to third parties (« tiers ») : no contractual relationship - If he comits a tort : tort relationship between the agent and third parties If the agent did not respect the limit of power : Tort relationship between the agent and third parties : he should compensate, remedies Exception if the third parties knows that the agent exceed his power B) Relationship between the principal (« mandant ») and the third parties :Art 1998 CC : - if the agent respect the limit of power : contractual relationship between the principal and third parties - If the agent exceed his power : no contractual relationship between the principal and third parties  exception : if the principal ratified an act after the conclusion of the contract Effects of this contract :

10. 4) The end of this contract: Principle for classical contract : the contract finish when the both parties want to stop the contract → consensualism → art 1334 al 2 CC But it is an exception for the mandate → possible to stop contract with just the will of one party : 2 ways to stop the contract : - by the waiver of the agent (« mandataire ») - by the revocation of the principal (« mandant ») 2 reasons : - trust between both parties - intuitus persnae contract

11. Thanks !