REPLACEMENT OF THE TRADE . AUTHORITY the principal. DISTINCTION BETWEEN POWER AND POWER GENERAL OR SPECIAL DESIGNED GENERALLY. Resolution of May 7, 2008, the Directorate General of Registries and Notaries, in the action brought by the Notary of Madrid Mr. José María Fernández Madridejos against the refusal of the commercial register of Segovia to register a writ of seizure. Binding .
Facts: The manager of a company, with a rated power of "special", but in a great extent on their terms (represented in court and outside it, perform any acts or devices duties on all goods, administrative or domain) and with power of substitution, gives turn to another person, with a great specification of the powers granted.
The eligible register that given the generality and ambiguity of the powers of the grantor, can not tell if the detailed powers granted to the agent are included in which it was granted. Apart from that denies the right 32-litem, pursuant to art. 261 and 266 of C. Com. and RDGRN of 01/23/2001. The notary draws
basing his argument on the distinction between power and general power granted in general terms of art. CC 1713. In his view the power with which he performs the principal is clearly a "general power" and therefore precisely because broad and generally should not raise doubts that the powers granted are within the scope of the powers of the grantor.
Doctrine: DG, with revocation of the rating, makes the following interesting statements:
1. To qualify a general or special power (Art. 1712 CC) should not be addressed by the words used, but there must be at the interpretation of the will of the grantor.
2. General power is affecting all businesses of the principal and special power is given for "acts uniquely specified.
3. Sometimes general mandate and mandate broadly conceived (See Article 1713 CC) coincide, as in the case of power granted to all client matters without specifying the type of acts permitted to an agent, in which case it is obvious that only include acts of administration.
4. Power will be special in it when there are two circumstances: Appointment of which bears interest and type of act authorized.
5. Therefore one can speak of a general power but to understand acts of strict ownership and power in general terms that would apply the restriction of Art. CC 1713.
6. Organic representation have a default content (cf. Art.286 C. Com and 129 and 63 LSRL LSA), but voluntary representation, should be measured by the instrument of power, taking extreme caution and rigor in the interpretation.
7. As a result of all this qualifies the power, under which principal works in the case of resolution, understanding of all kinds of acts and transactions where money or fall on the normal business traffic. Ultimately the interpretation of power in this case must be "strict" but not "restrictive."
8. Finally, regarding the registration of the DG litem civil calls it is not intended to trade transactions, and therefore, given that the principal was not prohibited substitution, it is perfectly registrable in Registry.
Comments: Two are essentially the issues addressed by this resolution DGRN:
1 .- The first is related to the interpretation of the power business, where such agents, in turn, being authorized to do so, confer other powers. It is a problem that often arises in the RRMM. Indeed
the powers conferred by the proxies of companies may take two forms:
--- A when transcribed in writing seizure powers of attorney and the power conferred refers to these powers, in which case there is no problem because there are clear interpretation of the principal powers in perfect agreement with the attorney.
--- And another when transcribed or not such authority in writing of power (cf. Article 98 Law 24/2001), the powers granted by the agent literally do not match with the powers conferred or granted the new proxy. It is in this case when the seizure by classifying the question arises whether the powers vested with the principal or not. It is a difficult problem arises because in many cases whether or not certain powers within the terms of power replaced. Typically in these cases is to suspend the registration of power based on art. 1259 CC and the general principle of law that "no one gives what is not." In view of the new resolution the problem is complicated because we interpret the power granted and intent of the principal to see if that power, not literally reflected in the power of the principal is or is not included in the power of attorney granted to the principal now . Despite the difficulty of this work believe that the resolution gives enough clues as to where to go the score in these cases in which, except in the case of a general power, the rating should be based on a strict interpretation or restrictive, according to cases of power in determining whether a particular power may or may not be granted by the proxy. In any case, the DG clarified and this is very important that the power granted, from a general power will always limit the business or trade of the company, although this limitation may not be appreciated by the RM, but it must be performed in each case the proxy action.
2 .- The second problem concerns the scope of the trial attorney of sufficiency to the content of the books of the commercial registry. Skilled in writing, as evidenced by the legal basis of the resolution, the trial attorney was sufficiency. However, neither the notary at the time of filing the appeal, or the DG dealing with it, tienen en cuenta ese juicio de suficiencia notarial, ni el uno para reforzar su recurso, ni la DG para revocar el acuerdo de calificación, pues simplemente dice que había sido realizado. Ello quiere decir, al menos a nuestro juicio, que frente a los claros pronunciamientos de los libros del RM que esté a cargo del calificante, no de otro RM, dichos pronunciamientos prevalecerán sobre el juicio de suficiencia. Ello debe ser así, no sólo en aras de la seguridad jurídica preventiva, sino en virtud del principio de legitimación proclamado en el art.20 del C. Com. y art. 9 del RRM. Es decir que pese al juicio de suficiencia que haga el Notario sobre las facultades de un administrador, consejero delegado o apoderado, si del registro resulta that the manager or CEO is not, either because they have not yet signed his appointment to register or because it has been revoked, the deed executed on the basis of this trial in any case will be registrable in the RM. This doctrine is not extended to the grade in the Land Registry, nor the score on the RM where the entity in question is registered in another register (See Section 18 and 18 C.com LH).
Facts: The manager of a company, with a rated power of "special", but in a great extent on their terms (represented in court and outside it, perform any acts or devices duties on all goods, administrative or domain) and with power of substitution, gives turn to another person, with a great specification of the powers granted.
The eligible register that given the generality and ambiguity of the powers of the grantor, can not tell if the detailed powers granted to the agent are included in which it was granted. Apart from that denies the right 32-litem, pursuant to art. 261 and 266 of C. Com. and RDGRN of 01/23/2001. The notary draws
basing his argument on the distinction between power and general power granted in general terms of art. CC 1713. In his view the power with which he performs the principal is clearly a "general power" and therefore precisely because broad and generally should not raise doubts that the powers granted are within the scope of the powers of the grantor.
Doctrine: DG, with revocation of the rating, makes the following interesting statements:
1. To qualify a general or special power (Art. 1712 CC) should not be addressed by the words used, but there must be at the interpretation of the will of the grantor.
2. General power is affecting all businesses of the principal and special power is given for "acts uniquely specified.
3. Sometimes general mandate and mandate broadly conceived (See Article 1713 CC) coincide, as in the case of power granted to all client matters without specifying the type of acts permitted to an agent, in which case it is obvious that only include acts of administration.
4. Power will be special in it when there are two circumstances: Appointment of which bears interest and type of act authorized.
5. Therefore one can speak of a general power but to understand acts of strict ownership and power in general terms that would apply the restriction of Art. CC 1713.
6. Organic representation have a default content (cf. Art.286 C. Com and 129 and 63 LSRL LSA), but voluntary representation, should be measured by the instrument of power, taking extreme caution and rigor in the interpretation.
7. As a result of all this qualifies the power, under which principal works in the case of resolution, understanding of all kinds of acts and transactions where money or fall on the normal business traffic. Ultimately the interpretation of power in this case must be "strict" but not "restrictive."
8. Finally, regarding the registration of the DG litem civil calls it is not intended to trade transactions, and therefore, given that the principal was not prohibited substitution, it is perfectly registrable in Registry.
Comments: Two are essentially the issues addressed by this resolution DGRN:
1 .- The first is related to the interpretation of the power business, where such agents, in turn, being authorized to do so, confer other powers. It is a problem that often arises in the RRMM. Indeed
the powers conferred by the proxies of companies may take two forms:
--- A when transcribed in writing seizure powers of attorney and the power conferred refers to these powers, in which case there is no problem because there are clear interpretation of the principal powers in perfect agreement with the attorney.
--- And another when transcribed or not such authority in writing of power (cf. Article 98 Law 24/2001), the powers granted by the agent literally do not match with the powers conferred or granted the new proxy. It is in this case when the seizure by classifying the question arises whether the powers vested with the principal or not. It is a difficult problem arises because in many cases whether or not certain powers within the terms of power replaced. Typically in these cases is to suspend the registration of power based on art. 1259 CC and the general principle of law that "no one gives what is not." In view of the new resolution the problem is complicated because we interpret the power granted and intent of the principal to see if that power, not literally reflected in the power of the principal is or is not included in the power of attorney granted to the principal now . Despite the difficulty of this work believe that the resolution gives enough clues as to where to go the score in these cases in which, except in the case of a general power, the rating should be based on a strict interpretation or restrictive, according to cases of power in determining whether a particular power may or may not be granted by the proxy. In any case, the DG clarified and this is very important that the power granted, from a general power will always limit the business or trade of the company, although this limitation may not be appreciated by the RM, but it must be performed in each case the proxy action.
2 .- The second problem concerns the scope of the trial attorney of sufficiency to the content of the books of the commercial registry. Skilled in writing, as evidenced by the legal basis of the resolution, the trial attorney was sufficiency. However, neither the notary at the time of filing the appeal, or the DG dealing with it, tienen en cuenta ese juicio de suficiencia notarial, ni el uno para reforzar su recurso, ni la DG para revocar el acuerdo de calificación, pues simplemente dice que había sido realizado. Ello quiere decir, al menos a nuestro juicio, que frente a los claros pronunciamientos de los libros del RM que esté a cargo del calificante, no de otro RM, dichos pronunciamientos prevalecerán sobre el juicio de suficiencia. Ello debe ser así, no sólo en aras de la seguridad jurídica preventiva, sino en virtud del principio de legitimación proclamado en el art.20 del C. Com. y art. 9 del RRM. Es decir que pese al juicio de suficiencia que haga el Notario sobre las facultades de un administrador, consejero delegado o apoderado, si del registro resulta that the manager or CEO is not, either because they have not yet signed his appointment to register or because it has been revoked, the deed executed on the basis of this trial in any case will be registrable in the RM. This doctrine is not extended to the grade in the Land Registry, nor the score on the RM where the entity in question is registered in another register (See Section 18 and 18 C.com LH).
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