09 Procuracao

Summary

This video explains the concept of 'mandate' as outlined in the Civil Code, particularly focusing on powers of attorney (known as 'procuração'). It covers the legal aspects of granting someone the authority to act on another's behalf, including the types of mandates (express or tacit, written or verbal), the responsibilities of the mandatary (person receiving the power), and when a mandate may end, such as by revocation or expiration. The video also addresses specific details about powers that can be delegated, the necessity of written documents, and the potential consequences of acting outside the scope of authority.

Takeaways

• 😀 The 'Instrument of Mandate' (Mandato) is a legal mechanism in which one person grants another the power to act on their behalf, typically through a document called a 'Procuração' (Power of Attorney).
• 😀 A 'Procuração' is the formal document that records the delegation of powers, and it can be in public or private form, depending on the situation.
• 😀 The mandate can be either **express** (explicitly granted) or **tacit** (implicitly granted through actions), and it can be either verbal or written, though written is generally preferred for clarity.
• 😀 The document of 'Procuração' must include key information such as the location where the power is granted, the identification of the parties involved, the purpose of the delegation, and the extent of the powers given.
• 😀 'Substabelecimento' refers to the act of transferring granted powers to another person, which can be done with or without reservation, meaning the original power may be entirely transferred or partially retained.
• 😀 A mandate can be **special** (for specific tasks) or **general** (covering broader responsibilities). Special mandates are for specific actions like selling a particular property, while general mandates allow for ongoing administrative duties.
• 😀 A mandate is generally presumed to be **gratuitous**, unless otherwise agreed, such as in professional mandates (e.g., a lawyer handling legal matters), where compensation may be expected.
• 😀 If a mandate is revoked or the person granting it (outorgante) dies or is incapacitated, the mandate is automatically terminated.
• 😀 The mandatary (person receiving the power) must act with due diligence, meaning they should act as a reasonable person would in handling the matter at hand, and must compensate for any harm caused by negligence.
• 😀 A mandatary is required to give reports about the management of the mandate to the mandator, and must transfer any profits or advantages gained from the mandate back to the mandator.
• 😀 A mandate can be terminated when the specific task or contract is completed, by revocation or renunciation, or when a specified time period ends. Once the purpose of the mandate is fulfilled, it is considered concluded.

Q & A

What is the main function of a power of attorney (mandato)?

The main function of a power of attorney, also known as 'mandato', is to grant someone else the authority to act on another person's behalf in various legal matters or decisions, such as signing documents, managing property, or representing the person in certain situations.

What does the power of attorney document (procuração) entail?

The power of attorney document (procuração) serves as the official instrument that grants authority to someone (the 'attorney-in-fact') to act on behalf of the person who has given the power (the 'grantor'). This document outlines the scope of authority, including the specific actions the attorney-in-fact is allowed to undertake.

What is required for a power of attorney to be valid?

For a power of attorney to be valid, it must include the signature of the grantor, the place where the document was executed, the full qualifications of both the grantor and the attorney-in-fact (including personal details such as names and identification numbers), the purpose of granting the power, and the specific extent of the powers being delegated.

Can a power of attorney be granted verbally?

Yes, a power of attorney can be granted verbally, but it is generally preferred to be in writing. Verbal powers of attorney can be difficult to prove, especially if the actions taken are challenged later.

What is the difference between an explicit and implicit power of attorney?

An explicit (expressed) power of attorney is clearly stated, either in writing or verbally, while an implicit (tacit) power of attorney is inferred from actions. For example, if someone begins acting on behalf of another without formal documentation, it may be considered a tacit power of attorney.

What happens if someone acts beyond the powers granted by the power of attorney?

If someone acts beyond the powers granted by the power of attorney, the actions are generally considered invalid unless the grantor ratifies the actions. If the grantor does not approve, the transaction may be undone, and the person acting beyond their powers could be liable for any resulting damages.

What is a 'substituted power of attorney' (substabelecimento)?

A substituted power of attorney occurs when the attorney-in-fact (mandatário) delegates their powers to another person. This can be done with or without reserve. Without reserve means the original attorney-in-fact loses their powers, whereas with reserve means the original attorney-in-fact retains some powers.

How can the power of attorney be revoked or terminated?

The power of attorney can be revoked or terminated through a formal written document that explicitly states the revocation. It may also end automatically if the grantor or attorney-in-fact passes away, becomes incapacitated, or if the specified term or task is completed.

Is the power of attorney presumed to be free of charge?

In general, the power of attorney is presumed to be granted without compensation unless otherwise specified. However, if the attorney-in-fact is acting in a professional capacity, such as an attorney or a business agent, the service may be compensated according to the agreed terms.

What happens if the attorney-in-fact fails to fulfill their duties properly?

If the attorney-in-fact fails to fulfill their duties with the necessary diligence or causes harm due to negligence, they can be held liable for the resulting damages. They are required to act in the best interest of the grantor and use the same care they would use with their own affairs.