Mandatum u rimskom i savremenom pravu
Author
Atanasovska, Aneta P.Mentor
Ignjatović, Marija V.Committee members
Nikolić, Dragan K.Naumovski, Goce
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Show full item recordAbstract
Contract of mandate is a contract by which one party (the proxy)
requires that without or for a fee undertakes certain legal transactions
in the name and on behalf of another party (authoriser), which gives
authority to the job. The subject of this contract is not material, but a
legal transaction. This means that the proxy in the name and for the
account of the principal states will, in terms of the conclusion of a
specific legal transaction. However, by taking legal work on behalf of
the principal, the proxy does not become a creditor or the debtor, but it
remains authoriser. In other words, undertaking legal work on behalf
of others, means that legal facts organized in this way, or performed
legal transactions directly satisfy the principal and at the same time and
all of the possible effects that these products belong to the principal
legal affairs, since the attorney concluded legal work on behalf of the
principal. In modern law the scope of legal activities that can ...be
undertaken through a representative, it is really great and distinct.
Today, in contemporary law, accepted rule is that legal issues can take
proxies unless law expressly does not prohibit it. For example, the
possibility of representation is not permissible in the will. This
definition of the term contract authorization point to the fact that this is
only one possible way of representation. Representing such a legal
relationship on the basis of which a person takes legal affairs in the
name and on behalf of another person, based not only on the agreement
of the contracting parties but also on other acts, such as the law, the
statute of the legal person, court decisions etc.
Contract of mandate has its origins in Roman times, and therefore from
the Roman law. At the time this contract had certain peculiarities that
today, the contemporary law does not recognize. First of all, the old
Roman law does not recognize the principle on which basis legal
matters can be taken in someone else's name and for someone else, but
it was thought that the legal work is done by only those persons who
directly conclude a specific legal transaction. Even later, when there
was a need for guidance of else’s affairs, the principle used provided
that the attorney takes legal affairs for the grantor always in his own
(the attorney’s) name. In further, this meant that the attorney from the
moment of conclusion of the legal transaction became a creditor or a
debtor, with the obligation to transfer effect of a legal transaction to the
grantor.
In Roman law, the authorized person could undertake factual jobs, not
just legal, provided that he is not seeking any reward for the undertaken
work. In further, this meant that, in the initial stage of development of
Roman law, this agreement was amicable and based on trust and,
therefore belongs to the group of good legal jobs. So, mandatum was
concluded with a friend or a person that owed a favor. According to
Romans, this mandate was more an `empirical constatation ` than a`
rational principle`.
In the further development of Roman law, this agreement was a twosided
unequal binding contract (contractus bilateralis inaequalis),
since the proxy obliged to perform free some job on behalf of the
principal, who gave the warrant for that job to the proxy. Despite the
fact that there was no legal obligation on the side of the principal in
terms of the award, mandatum was considered contractus bilateralis
inaequalis, since the authoriser had an obligation to the attorney, in case
that the proxy had costs for the completed work. This agreement
belonged to the group of consensual contracts. In short, mandatum in
Roman law was a bonded relationship. Its definition is: Mandatum is
a contract by which one party (authoriser, mandant) requires the other
party (representative, mandator) to perform some affair in its account,
and the other side undertakes to perform the obligation for free. When
we are talking about the realization of demands of the mandate, the
representative had at his disposal actio mandati directa.
Mandatum was based on the bearing of personal trust between
authoriser and representative, so the death of any of them, led to the
termination of authorization given the contract extinguished.
Mandator had no right to continue using the authorization if mandant
died, nor the heirs of the mandator were obliged to execute the orders
which he received from a client. But the obligations of both parties
which were in some way completed while they were alive are crossing
to the successors of both parties. Also, whenever one party wished to
terminate the contract through unilateral cancellation, mandatum
would be extinguished.
In modern law, the power of attorney has a broad application, and in a
practical legal system it occurs frequently.
With this contract the person who does not want to, guided by any
reasons, participate in a specific legal affair (eg. for reasons of
incompetence, incapacity or absence) authorizes another person to
work in someone else's name and the account, and in this way, all legal
and property effects that would have been achieved in the presence of
authoriser, belong to an authoriser. The contemporary law provides
an award for the proxy (eg. award for the attorney).
The subject of this dissertation will also be the analysis of the
development of the power of attorney, in medieval society, through the
French Code Civil, the Austrian civil code, the Serbian civil code, the
German and the Swiss civil code. In the legal provisions that determine
the power of attorney in the Republic of Serbia and the Republic of
Macedonia there are no big differences. The only difference is the
number of the articles of the Law on Obligations, as well as in other
laws that contain provisions devoted to the power of attorney. For
example, in the Republic of Macedonia these are the articles 81-86,
and in the Republic of Serbia, under number 89-94. Legal provisions
that determine the power of attorney in both republics come to the fact
that the power of attorney represents an authorization for
representation, that authoriser gives to an attorney by the legal
transaction. The existence and scope of the power of attorney are
independent of the legal relationship on which basis they are given. By
law, the proxy may be a legal entity. The attorney can undertake only
those legal transactions for which he is authorized. Authoriser can
narrow or revoke his authorization, even if he renounced this right in
the contract. Revocation of power of attorney and its narrowing has
no influence on the third person who has concluded a contract with a
representative, or perform other legal work, and did not know nor had
to know that the power of attorney is revoked, or narrowed. The power
of attorney ceases by termination of a legal entity as a proxy, as well
as by the death of a representative. The reason of the similarity of these
provisions in the two republics is in the fact that they were once part
of the same large country. Thus, legislators are now, in separate states,
considering this problem in a similar way.