Prima facie power of attorney – what you need to know about it

The prima facie power of attorney is a legal prima facie power of attorney, which already occupies law students in the first semesters. Because of its great relevance for examinations, we would like to introduce the prima facie power of attorney in more detail, including a definition. So you will be well prepared for the time when you actually have to deal with the prima facie case in a written exam.

Prima facie power of attorney – definition

A prima facie power of attorney exists if the represented party does not have positive knowledge of the third party's actions, but could have recognized and prevented them with due diligence and the other party could assume that the represented party tolerates and approves of the representative's actions.

Difference to acquiescence power of attorney

In comparison to the power of attorney by estoppel, the prima facie power of attorney is characterized by the fact that the represented party was not aware of the unauthorized representative action, but could have recognized and prevented it by exercising due diligence.

The individual prerequisites of the prima facie power of attorney

Based on the above definition, the requirements of prima facie power of attorney can be specified as follows:

  • Legal prima facie case: If the third party is allowed to understand the conduct of the represented person as having authorized the alleged representative? This can be based on the active action of the represented party, but also on its failure to act. Frequently, however, the third party will not interact with the represented party at all, but only with the representative. Therefore, the conclusion will often be indirect based on how the representative behaves (so also Heidel/Hüßtege/Mansel/Noack/Ackermann, BGB AT, 4. Aufl. 2021, § 167 Rn. 83). It is not sufficient if the representative claims that he has been authorized. It is rather necessary that the representative action in question has already taken place several times and over a certain period of time at the time in question. In this case, a prima facie case can arise. It is also important to consider the nature of the agency transaction in question (only a small everyday transaction or a transaction with major financial implications)?).
  • Attributability of the legal appearance: Attributability exists if the represented party could have recognized and prevented the action by exercising due diligence.
  • Causality and good faith: The third party must prove the prima facie or prima facie case. know about the agent's actions and have concluded from this that a power of attorney exists, and contract with the agent on the basis of this.

Note 1: Precise knowledge of the details of the apparent offence is not required. Also, the third party itself does not have to have made its own picture of the facts establishing a prima facie case. It is enough if other persons tell him the facts or. have communicated their conviction of the existence of a proxy (Heidel/Hüßtege/Mansel/Noack/Ackermann, a.a.O., Rn. 87).

Note 2: With regard to good faith, any negligence will harm the third party analogously to § 173 BGB (German Civil Code). In principle, he has no duty to investigate. This exists only exceptionally with a special cause.

We hope that this overview will give you a better understanding of what a prima facie power of attorney is about and when it becomes relevant.

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