Legal Representation: Concepts, Powers, and Types
Direct Representation: Core Principles
The requirements for direct representation stem from three fundamental elements:
1. Acting on Behalf of Others
This requires the representative to be perceived by third parties as acting on behalf of another. This can be established through express acts (e.g., a power of attorney) or implied by good faith and the circumstances (e.g., the representative receiving other representatives to conduct business).2. Action for the Principal’s Benefit
The representative’s actions must be guided by the objective of defending the principal’s interests and expectations.3. Existence of Empowerment
This requirement applies to all forms of representative actions, though certain aspects of empowerment gain significant importance in direct representation.
Understanding the Concept of Representation
Individuals typically perform legal acts or conduct business directly. However, direct action may be impractical due to distance, or simply to save time; in such cases, another person may act on behalf of or in place of the interested party. Furthermore, individuals who lack legal capacity are represented in their rights and obligations.
Voluntary vs. Legal Representation
The Civil Code, Article 1259, states: “No one may contract in the name of another without being authorized by him or without having his legal representation.”
A. Voluntary or Conventional Representation
This form of representation is based on the principal’s decision. Through an act of private autonomy, the principal authorizes another person to act within their personal sphere. The principal could, if desired, act themselves. In this case, the representative’s authority stems directly from the principal’s will.
B. Legal Representation
This involves protective figures established by law. It originates from the law itself to protect individuals who lack legal capacity, ensuring their interests are managed by a capable person (e.g., a guardian or tutor) whom the law empowers and obliges to perform these duties. In such cases, the legally incompetent person cannot (e.g., an absent person) or should not (e.g., an insolvent or bankrupt person) conduct their own affairs. The representative’s actions do not depend on the will of the represented party; rather, the representative acts autonomously and fully in the legal activity, replacing the represented.
Empowerment: Power and Mandate
For a representative to act on behalf of another, they must possess a grant of power. This empowerment is the foundational step for acting on behalf of others, as it delineates the specific powers granted. The act of empowerment is unilateral; its sole effect is to grant the representative the authority or possibility (not an obligation) to represent the principal. If the power is granted but does not come to the attention of the attorney, it exists and is valid but remains ineffective without further action. This often necessitates the existence of a contract of mandate, under which the attorney is obligated to carry out the activity specified as the object of the mandate. This highlights the interrelationship between the mandate (a contract) and the power (a unilateral business act).
Types of Power of Attorney
A. Special Power of Attorney
This is granted when the principal wishes the attorney (representative) to manage only a specific case or transaction. Example: To purchase a house.B. General Power of Attorney
This authorizes the agent to manage multiple issues for the principal, or even all of their affairs and business.
When Multiple Representatives Act for the Same Case
If multiple people are designated for the same case, their performance may be either solidary or joint.
Solidary Power
Granted to several individuals for a single case, allowing any one individual to independently handle the business in question.Joint Power
Where the designation of several individuals for a single case requires their collective involvement in the final conclusion of the business.
A power of attorney is generally revocable without cause or specific basis, although the express wish of the principal may render it irrevocable under certain conditions.
Typical and Atypical Legal Acts
Typical Legal Acts
These are acts that have specific legal recognition and a defined regulatory regime. Examples: Adoption, purchase agreements.Atypical Legal Acts
These are agreements resulting from private autonomy that lack express legislative regulation. Example: Certain types of unions or partnerships not explicitly defined by law.