A mandate, also known as power of attorney, is a contract by which one person (the principal) gives another person (the agent) the power to enter one or more legal transactions with a third party in their name and on their behalf.

When you engage the services of a lawyer, you are entering into a mandate contract (agency contract).

Basic conditions

As in any contract, the parties must have the capacity to conclude the act by which they give the mandate to the agent. For their part, the agent must have the capacity to accept the mandate entrusted to them. The mandate may be gratuitous or onerous. Note that it is presumed to be free between two people, but onerous with a professional, so it must be possible to prove remuneration or the absence of remuneration.

Purpose of the contract

The mandate may be general, i.e., it may provide for the management of all the principal’s affairs. However, if it is conceived in general terms, it only confers the power to perform acts of simple administration; an express mandate confers the power to perform acts other than these. It may also be a special mandate, where the agent is entrusted with the performance of specific, predetermined acts.

The agent’s powers extend not only to what is expressed in the mandate, but also to everything that can be deduced from it. The agent may perform all acts which derive from these powers, and which are necessary for the execution of the mandate. For example, if the mandate concerns the sale of your vehicle, the agent will also have the power to sign the sale documents and hand over possession.

Formal conditions

A mandate is a consensual contract that requires no form. It can be verbal or written. However, it will obviously be easier to prove the legal act if it is in writing. The agent must accept the mandate, and this acceptance may be tacit or express.

The contract document of the mandate can therefore be a simple written document, or a more complex document drawn up by a lawyer or notary. The following information is important when signing the document:

• date and place of signature
• the duration of the mandate
• the name of the principal, including contact details
• the name of the agent, including contact details
• a description of the powers entrusted to the agent and their limits
• the deadline for completion of tasks, if applicable
• signatures (principal and agent).

Usefulness or caution

In many situations, a mandate can be useful.

• Payment of an invoice
• Signature of a contract
• Sale of goods
• Obtaining documents and information from a third party
• Mandating a lawyer to represent you in legal proceedings or negotiations.
• …

However, it is important to ensure the reliability of the agent entrusted with the mandate, especially if the contract confers extensive powers on them. By virtue of the power of representation, the agent has the right and power to create, modify or extinguish the rights or obligations of the principal towards third parties, which can have significant consequences.

Of course, the agent has a duty to act with prudence and diligence, honesty, and loyalty, to inform the principal and to respect the limits of their mandate. Nevertheless, the principal is bound by the act performed by the agent on their behalf within the limits of the mandate entrusted to them and is liable to third parties as if they had performed the act themselves. The principal may even be liable for damage caused by the agent’s fault in executing the mandate.

Please do not hesitate to contact us if you have any questions on this subject.