Type (agent) power of attorney – Legal situation, significance, and scope
The type power of attorney, also known as agent’s power of attorney or more precisely type agent’s power of attorney, is a power of attorney specifically limited to certain types of transactions or acts within the framework of German commercial law. Along with the individual power of attorney, collective power of attorney, and the commercial procuration (Prokura), it is one of the most important subtypes of legal representative authority. The type (agent’s) power of attorney plays a particularly important role in commercial transactions and is subject to specific legal regulations.
Definition and Distinction
The type (agent’s) power of attorney is a term from commercial law that fundamentally differs from procuration (§ 48 ff. HGB) and the general agent’s power of attorney (§ 54 HGB). While procuration and agent’s power of attorney confer extensive authority of representation, the type (agent’s) power of attorney is limited to very specific types of transactions or individual activities.
Definition and Concept
The type (agent’s) power of attorney is a power of attorney granted by legal transaction, by which the authorized person is empowered to carry out a certain type of legal transactions or legal acts, specified by law or by the business, within a company. The authorization does not cover individual actions but rather a clearly defined category of similar transactions.
Distinction from agent’s power of attorney and procuration
Agent’s power of attorney: The simple agent’s power of attorney (general agent’s power of attorney) pursuant to § 54 HGB covers all transactions commonly associated with the operation of a trading business, unless they are expressly reserved for procuration or excluded by the principal. Procuration: This refers to the most comprehensive commercial power of representation in accordance with §§ 48-53 HGB, covering all types of judicial and extrajudicial acts that a trading business entails. Type (agent’s) power of attorney: This is more narrowly tailored than the agent’s power of attorney, as it is granted only for precisely defined processes or types of transactions within the company (e.g., accounting authority, specific purchases of goods).
Legal framework
§ 54 German Commercial Code (HGB)
The type (agent’s) power of attorney is not expressly regulated in the wording of the German Commercial Code (HGB), but represents a particularly common form of the agent’s power of attorney developed according to practical needs pursuant to § 54(1) HGB:
“(1) A power of attorney granted by the owner of a commercial business to an employee for certain transactions belonging to the operation of the commercial business or for a specific type of transaction has the effect of an agent’s power of attorney.”
The type (agent’s) power of attorney must relate to a specific type of transaction or legal act that typically belongs to ongoing business operations, but without the comprehensive scope of representation of a procuration.
Form and Content
The granting of a type (agent’s) power of attorney is not subject to any particular form – unlike the procuration. It may be issued orally, in writing, or through conclusive conduct. Only for certain legal transactions (e.g., real estate sales) may a special form be required by the respective material law (§ 311b BGB).
Scope and Limitations
Extent of Authorization
The type (agent’s) power of attorney authorizes the agent exclusively to undertake those transactions that the relevant type expressly covers. Typical ancillary acts directly connected are included within the permissible scope. Any exceeding of the scope means that representation to the outside is generally excluded.Example: If an employee is authorized to purchase office supplies, she may not conclude contracts for the purchase of company vehicles.
Limitations in External Relations
Restrictions apply to third parties only if they have been brought to their attention (§ 54(3) HGB). Otherwise, the contracting party may rely on the apparent scope of the power of attorney, unless there is a case of obvious abuse.
Types of Type (agent’s) Power of Attorney
The type (agent’s) power of attorney can take very different forms. Typical manifestations are: Cash authorization: Authorization to conduct cash transactions. Accounting authorization: Permission to carry out accounting tasks. Purchase authorization for goods: Authorization to conclude transactions for the acquisition of goods of a certain category. Shipping authorization: Power of attorney for the handling of shipping and transport transactions. Personnel authorization: Including the authority to hire, issue warnings, or dismiss, as required by the assigned activity.
Relationship to Other Types of Authorization
Corporate Law and Labor Law
Type (agent’s) powers of attorney are not only used in commercial law but also in corporations and associations if specific areas of responsibility are delegated. In labor law, the authorization is often determined together with employment contract provisions.
Special features in Civil Law
The general rules of agency (§§ 164 ff. BGB) apply to the type (agent’s) power of attorney, unless specific commercial regulations exist. The legal relationship between the principal and the agent is decisive.
Revocation and Expiry
The type (agent’s) power of attorney can be revoked by the principal at any time, unless otherwise agreed. It lapses in particular upon termination of the underlying service or employment relationship or upon the occurrence of a dissolving condition.
Liability Issues
If the agent acts within the scope of a recognized type (agent’s) power of attorney, the principal – i.e., the company or entrepreneur – is generally liable. Any exceeding of authority leads to liability for the agent, provided the contracting party was unaware of the limits of the authorization.
Summary and Practical Significance
The type (agent’s) power of attorney enables differentiated, division-of-labor organization within companies and is a flexible instrument for distributing business responsibilities. It facilitates delegation of areas of responsibility without the risks associated with comprehensive representation as with procuration. In business transactions, the type (agent’s) power of attorney is a practice-oriented, variably configurable form of granting authority with clearly defined limits, ensuring legal certainty for both the company and its contractual partners.
See also
Agent’s power of attorney
Procuration
* Agency (Germany))
Legal notice: The above explanations provide a comprehensive overview of the type (agent’s) power of attorney; in individual cases, different contractual arrangements or industry-specific particularities may give rise to further legal questions.
Frequently Asked Questions
Who can grant a type agent’s power of attorney?
A type agent’s power of attorney can generally be granted by any principal with legal capacity in business transactions. Usually, these are merchants, managing directors, board members, or other authorized bodies of a company who grant a person – such as an employee – a type agent’s power of attorney for certain recurring transactions within the scope of a trading business. The grant is usually informal unless a specific form is prescribed by law or articles of association; however, written form is often chosen for evidentiary purposes. It is important that the scope of the power is clearly defined and limited to a particular type of transaction (e.g., the sale or purchase of goods, debt collection).
How does the type agent’s power of attorney differ from procuration?
The type agent’s power of attorney is fundamentally different from the procuration. While the procuration under § 48 HGB grants comprehensive authority for virtually all transactions and legal acts in commercial business, the type agent’s power of attorney under § 54 HGB is limited to a specific type of transaction and in particular excludes so-called fundamental transactions, such as the sale of the company, the admission of partners, or the granting of procuration itself. Furthermore, the type agent’s power of attorney does not need to be entered in the commercial register and can be revoked at any time, while the procuration must be issued, revoked, and registered in the commercial register.
What rights and duties does the holder of a type agent’s power of attorney have?
The holder of a type agent’s power of attorney may carry out only those transactions and legal acts that fall within the scope of the delegated authority. These may typically include the purchase of specific goods, management of cash transactions, or signing certain contracts. Actions going beyond these transactions are not covered by the power of attorney. If the agent exceeds the scope of the type agent’s power of attorney, the principal is generally not liable for the transaction caused by this, unless the third party could not recognize the restriction of the power of attorney (protection of good faith applies only to a limited extent).
Does the type agent’s power of attorney have to be publicly announced or registered?
In contrast to the procuration, there is no requirement for entry in the commercial register or public announcement for the type agent’s power of attorney. The type agent’s power of attorney constitutes a purely internal legal relationship between the principal and the agent. Nevertheless, written documentation of the authority is recommended to provide clarity for contracting partners and to avoid difficulties of proof. Externally, the contracting partner must always inform themselves about the extent of the agent’s authority.
What liability risks exist in the event of misuse of the type agent’s power of attorney?
For damages arising from exceeding the scope of the power of attorney, the agent is generally liable – for example, by way of representative liability (see §§ 177, 179 BGB), provided the contracting party could not recognize or was not required to recognize the exceeding of authority. The principal is liable only within the scope effectively delegated to the agent. If the contracting party suffers loss by relying in good faith on a broader authority than actually existed, there are generally no claims against the principal.
Can the type agent’s power of attorney be revoked at any time?
Yes, the type agent’s power of attorney can generally be revoked by the principal at any time. The right of revocation is not tied to specific deadlines or formal requirements, unless alternative arrangements exist (e.g., in the employment contract or articles of association). Upon revocation, the agent’s representative authority ends immediately. However, the revocation should be explicit and preferably in writing to ensure legal clarity and security of evidence. It is also often advisable to notify relevant business partners of the termination of the power of attorney.
