On the power of representation

Abstract

The legal technique of representation or, in other words, the legal mechanism of representation especially held the attention of the doctrine after a general regulation as well (art. 1.295 1.314), was reserved in the applicable Civil Code, besides the special regulation of the representation mandate (art. 2.012, 2.013 2.038). Nevertheless, the power of representation, which is the most important item of this legal mechanism, has not been examined from the perspective of the category of legal powers to which it belongs: special powers. However, the power of representation cannot be truly understood if this legal qualification is disregarded. The special power is the type of the power of representation.
That is why, in order to emphasize the specific nature of the power of representation, certain specifications are necessary regarding the mutation of the meaning of the word “power” in the context of constitutional democracy and the concept of “special power” in the private law, the correlation between the special powers and the debts, the difference between the misappropriation of power and the abuse of law, the manner of exercising the special powers and the difference between these and the potestative rights, as well as the situations in which there is representation without any power and power without any representation (II).
On this ground, the legal content of the power of representation is emphasized as a variety of special power, the meanings of the word “proxy” are shaped, the effects of representation are emphasized, the issue of enforceability of this special power is coherently solved and the procedure of the retroactive granting of the power of representation is explained (III).