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COMM 315
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04Nov08MANDATES p512130 Definition of mandateMandatekkPA13rdMandatorPrincipal 3 partyMandataryAgentkcontract 13third partyPower of attorneywritten document evidencing your right to act on behalf of another person2131 Ignore living will12132 Acceptance of mandate can be either expressed or tacitie the agent must accept the mandate 2133 Two types of mandatesGratuitouswithout compensation between two natural personsOnerousfor money between professional and natural personThis is not public order you can reverse it2134 MoneyOnerousif no price mentioned assume whatever the usual rate is eg if you ask the prof for legal advice he could send you a bill even if he didnt tell you he was charging youGratuitousif between two persons then free2135 Two classifications of mandatesSpecial egmom sell my houseGeneral egjob offer overseas mandate mom to do everything while Im gone2136 Implied activities incidental are included in mandateeg to sell house implied that need notary put money in bank etc but it doesnt mean to sell my car too2137 A mandate doesnt need to spell out everything the Agent needs to do if the tasks are part of the Agents professioneg If you hire a lawyer you dont have to tell the lawyer what to do1 unvoiced or unspoken understood without being openly expressed implied2149215813PA2138214821592160Obligation of the Agent towards the Principal a trust obligation because the principal is trusting the agent and the agent must act in the best interest of the principal2138 Agent has to act in the shoes of the Principal2the basic fiduciary duty owed by Agent towards Principal2139 Obligation of informationA must keep P informed as to whats going on when asked or when needed2140 The rules1A must personally fulfill mandate unless P authorizes substitution but2A can replace himself if unforeseen circumstances eg an accident or illness prevent him from fulfilling mandate2141 Situations with substitutes1If A has no authorization to substitute then A is liable for acts by Substitute2If A has authorization to Substitute himself then A is only liable foraQuality of SubstitutebInstructions givenOnly way A not liable is if S is good quality and A gave good instructions ie the agent selects the right substitute and gives the right instructions but the substitute messes upIn all cases S is liable ie you can sue the substitute2142 Unless prohibited the Agent can use an assistantBut the A is liable for all acts of the assistant2143 12APPAgent cant fulfill interests of both Principals that have conflicting interestsoA has to tell both Ps there are competing interestsAs duty becomes acting impartially to both Ps2 Fiduciary Dutythe duty of trust
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