It is the notarial document by means of which a company confers an authorization in favor of a person (that can be physical or also legal), who receives the denomination of attorney-in-fact, so that this one, in name and representation of the company, can carry out all kinds of acts and contracts within the framework of the corporate purpose of the above mentioned company.
This is a merely informative and non-binding estimate. This estimate is calculated based on two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
In accordance with commercial legislation, the directors are responsible for the management and representation of the company. Thus, in practice, the company's governing body is responsible for the day-to-day management of the company, taking ordinary decisions affecting the economic activity (management of sales and purchases, personnel, cash flow, compliance with legal and tax obligations, etc.), as well as the strategic orientation of the company and its positioning in the market (design of new products and services, opening of new markets or business opportunities, etc.).
Given the complexity of the productive activity in a world as globalized as the present one, the great current dimension of many companies, both in terms of geographic scope and the work force that many of them have, it is evident that this management and representation work cannot be carried out only by the administrators of the companies, but these are going to need in many occasions the assistance and help of third parties, which it is very possible that they need to have in their favor, for the performance of the entrusted tasks, of sufficient faculties to act in name and representation of the company for which they render services.
The execution of specific acts, such as contracts for the purchase and sale of products, provision of services, supplies, acquisition of capital goods, or in a generic way and for all kinds of legal acts and businesses, such as the management of branches or delegations of the company by its managers or persons in charge, are only some of the examples in which representatives of companies may need to have sufficient powers conferred by the company they represent, all this in order to validly perform these acts in many occasions, or in others to simply provide them with greater legal certainty.
It is therefore in order to solve this need to prove in a reliable manner the veracity of this representation and the validity of the powers necessary for the execution of the legal transactions in question that the legal system has designed, among other mechanisms, the instrument of the power of attorney or commercial power of attorney, which, within the framework of commercial traffic, will allow companies, in a safe and guaranteeing manner, to confer in favor of another person (who may in turn be a natural or legal person) powers to act in its name and representation in all those legal acts and businesses specified in the power of attorney conferred, thus facilitating the development of the economic activity in a safe and agile manner for the granting company, thus contributing to the generation of wealth and added value for the company.
From a legal point of view, the figure studied here can be framed within the framework of voluntary representation, an institution by virtue of which an authorized person grants on behalf and in the interest of another, a legal transaction, projecting on the represented person the legal effects of the same.
Within the framework of this voluntary representation, the power of attorney (and in the present case, the commercial power of attorney) can be identified as the legal business or instrument by virtue of which this voluntary representation is conferred.
On this basis, the commercial power of attorney can be defined as a unilateral and receptive legal transaction by which a company authorizes another person (who may be a natural or legal person) to carry out on its behalf those legal transactions that are detailed in the power of attorney so that they produce effects in the patrimonial sphere of the grantor.
In our legal system, the institution of voluntary representation has no systematic regulation, and the only precept in which it is expressly referred to is the aforementioned article 1,259 of the Civil Code, which establishes that no one may contract on behalf of another without being authorized by the latter, being null and void the contract entered into on behalf of another by whoever does not have his authorization.
However, traditionally, in order to fill this regulatory gap, the institution of the mandate has been equated with voluntary representation, although today, and following the current doctrine of the Supreme Court, it can be stated that they are two independent institutions, but with the proviso that the rules relating to the mandate contract will apply to voluntary representation, provided that the principles relating to the mandate are compatible with the power of attorney in question.
In any case, the interested parties must be clear about the difference that exists between the commercial power of attorney (which is the legal business through which the voluntary representation is instrumented) and the underlying legal business underlying such power of attorney, which may be usually the mandate contract, although it may also be others such as a commission contract, a service lease contract, or even an employment contract (by virtue of which, under a regime of dependence and dependence, an employment activity is carried out on behalf of an employer).
In accordance with commercial legislation, the power to grant powers of attorney in capital companies corresponds solely to the administrative body of the company. Thus, only the sole director or the directors (joint or several) of the company or by agreement of the board of directors may grant the appropriate commercial power of attorney so that another person (individual or legal entity), in the name and on behalf of the company, may validly carry out legal business on behalf of the company.
On the contrary, neither the sole shareholder nor the general meeting will be entitled to grant a commercial power of attorney on behalf of the company, as this has been clearly established by the General Directorate of Registries and Notaries in several of its resolutions (see, among others, those of March 1, 1993 or February 4, 2011).
In accordance with our legal system, and as mentioned above, the commercial power of attorney may be granted in favor of either a natural person or another legal person.
In the case of a natural person, he/she must have the capacity to act, or the necessary capacity to bind him/herself.
In the case of legal entities, they must be validly constituted companies, indicating all their identification data.
The main distinction to be made between the types of powers of attorney is between general and special powers of attorney, being general when they include all the business of the principal, while they are considered special when they refer to one or more specific businesses.
Thus, companies, when granting commercial powers of attorney, may do so in general, so that their attorney-in-fact can act in all areas of the company's commercial transactions (such as, for example, entering into purchase and sale contracts, managing its assets, operating with credit institutions, indebting the company, paying taxes on behalf of the company, acting on its behalf before the Public Administrations, etc.) or on a special basis, so that the attorney-in-fact can only perform a specific act or a specific type of act (such as, for example, the management of a specific property or a general authorization to enter into purchase and sale contracts for products marketed by the company, etc.).) or on a special basis, so that it can only perform a specific act or a specific type of act (such as, for example, the management of a specific real estate property or the generic authorization to enter into contracts for the purchase and sale of products marketed by the company).
Assuming that it is not strictly mandatory that a power of attorney be recorded in a public deed, it is necessary to indicate that it is highly advisable, for the following reasons:
Firstly, to provide legal certainty to the act, since the execution before a notary will ensure that the document and its contents comply with the law.
Likewise, from a practical point of view, it is evident that by granting the power of attorney in a public deed, it will be much easier for the attorney-in-fact to make use of his powers with third parties, since he can easily prove them and carry out all the legal business he may need. On the contrary, if it is only recorded in a private document, it is very possible that third contracting parties will be suspicious of the veracity of his representative powers and will put obstacles of a legal nature to close the intended business.
Furthermore, from a legal point of view, it must be taken into account that the law requires that, among others, the power of attorney to administer assets and any other power of attorney whose object is an act drawn up or to be drawn up in a public deed or which is to be detrimental to a third party, as well as the assignment of shares or rights arising from an act set down in a public deed, be recorded in a public document.
In relation to the interpretation of commercial powers of attorney and the practical problems arising from their application, it is necessary to refer first of all to the fact that, in accordance with the applicable regulations, the agent may not exceed the limits of the power of attorney, so that the attorney-in-fact may only perform those acts that are expressly and unequivocally included in the powers granted in the power of attorney.
In order to determine whether an act in question is effectively included among the powers conferred to the attorney-in-fact, we must resort to the doctrine established in this respect by the General Directorate of Registries and Notaries, which has established (see among others the resolution of May 7, 2008) that the voluntary representation must be measured by the power of attorney, being extremely cautious and rigorous in the interpretation of the same, so that its interpretation must be carried out in a strict but not restrictive manner, always trying to infer the original will of the principal and always circumscribing the limits of the power of attorney to the business activities or traffic of the company in question.
That said, with regard to specific cases that have generated controversy, the following issues should be taken into account by the interested parties:
First of all, it should be clear that it is not possible for a director of a company to grant himself a power of attorney with the power of self-contracting (which would allow him, for example, to acquire goods or services on behalf of the company). This prohibition has been ruled by the Directorate General of Registries and Notaries in many decisions (among others, those of February 27, 2003, July 18, 2006 and April 28, 2015), the main arguments being that allowing such a power of self-contracting would imply accepting an illusory possibility of revocation of the power of attorney (since it is the administrator himself who is the only one entitled to revoke it), a circumvention of the liability requirements for the director (since in the case of proxies they are lower than for the director) and a possible violation of the conflict of interest regime of Article 229 of the Capital Companies Act.
Likewise, interested parties should also bear in mind that it is possible for two joint administrators to grant a commercial power of attorney to a third person so that, in the name and on behalf of the same, he/she may exercise the powers that are proper to these joint administrators, provided that these are detailed in the company's bylaws and are transcribed as such in the power of attorney deed, without it being logically possible to grant the exercise of powers that cannot be legally delegated (see resolution of the General Directorate of Registries and Notaries of December 11, 2000).
Finally, it is necessary to indicate that in the event that more than two attorneys-in-fact are jointly empowered, in this case the provisions of Article 233.2 of the Capital Companies Act for the administrators will not apply to them, which implies that all of them must act jointly for the conclusion of valid legal business (see resolution of the General Directorate of Registries and Notaries of February 27, 2013).
With regard to the registration of powers of attorney in the corresponding Commercial Registry, it is necessary to point out that in practice this issue raises some controversy.
In this regard, it is necessary to point out that in general there is no obligation to register powers of attorney in the Commercial Registry, unless it is a general power of attorney, in which case, according to the requirements of Article 94 of the Commercial Registry Regulations, it will be necessary to register it in order for it to be fully valid (see in this regard the resolution of the General Directorate of Registries and Notaries of May 9, 2014).
In any case, however, it should be taken into account that in many sectors of traffic, as for example with financial institutions, powers of attorney, even if special, will be required to be registered in the Commercial Registry, which undoubtedly increases the legal certainty of all the operators involved in the legal transactions in question.
Likewise, with regard to the possible revocation of the power of attorney, it is necessary to indicate that it will of course be registrable in the Mercantile Registry, provided that it is granted by the director of the company with sufficient powers by means of the corresponding public deed, bearing in mind that what will be registered will always be the revocation deed, not the notarial deed of notification of said revocation which, if applicable, could be requested by the company in order to inform the former attorneys-in-fact of said revocation (see in this regard the resolution of the Directorate General of Registries and Notaries of May 22, 1999).
The legal system also allows the possibility that, in a conferred power of attorney, the person of the attorney-in-fact may transfer the powers granted to him/her in favor of a third person. This possibility of delegation can be carried out through the figures of substitution (when the new attorney-in-fact is subrogated to the former position of the first attorney-in-fact, who ceases to be such) or sub-authorization (when the original attorney-in-fact delegates or grants part or all of his powers to another person without his power being extinguished), provided, of course, that the principal allows it.
In any case, in the case of a commercial power of attorney, the provisions of Article 261 of the Commercial Code shall apply to the commission contract (as established by the resolution of the General Directorate of Registries and Notaries of January 23, 2001), by virtue of which, the commissioner shall perform by himself the orders he receives, and may not delegate them without the prior consent of the principal, unless he is authorized to do so beforehand. Thus, within the scope of the commercial power of attorney, the substitution and/or sub-authorization will be allowed as long as it has been so contemplated by the principal in the original deed.
Likewise, it is necessary to specify that it is understood that the attorney-in-fact who proceeds to substitute or sub-authorize the power of attorney conferred upon him/her must notify the original principal, since Article 260 of the Code of Commerce requires the commissioner (in this case, the attorney-in-fact) to frequently communicate to the principal (in this case, the principal) the news that are of interest to the good success of the negotiation; and, in any case, to the Notary Public who is the holder of the protocol of the power of attorney, as required by Article 178 of the Decree of June 2, 1944, which definitively approves the Regulations on the organization and regime of the Notary's Office.
As already indicated above, as regards the possible revocation of the power of attorney, it is necessary to indicate that, of course, it is possible, and also that such revocation may be registered in the Commercial Registry, provided that it is granted by the administrator of the company (that is, by the person who holds the power of attorney for the company) with sufficient powers by means of the corresponding public deed.
In relation to the revocation of powers of attorney, it is also necessary to point out that on certain occasions conflicting situations arise with these actions, from which the following conclusions may be drawn:
Firstly, the revocation of the powers of attorney, as has been said, can only be granted by the company's administrative body, which in accordance with the Capital Companies Act has the powers of representation of the company). Thus, neither the sole shareholder nor the General Shareholders' Meeting has the powers to agree on their revocation (See in this regard the resolutions of the General Directorate of Registries and Notaries of February 4, 2011 and February 11, 2014).
Secondly, in the event that the administration of the company is entrusted to two joint administrators, one of them being a legal person, if a commercial power of attorney has been conferred in favor of the natural person representing said legal person who holds the position of joint administrator, it will be possible to revoke it with the simple will of the other joint administrator (see resolution of the General Directorate of Registries and Notaries of March 15, 2011).
In the event that the granting company has entered into insolvency proceedings, the revocation of the power of attorney will require, in addition to the administrator's expression of will, the authorization or consent of the insolvency administration (resolution of the Directorate General of Registries and Notaries of July 24, 2014).
As it cannot be otherwise, the legal system allows the attorney-in-fact to waive the power of attorney granted to him/her.
In such a case, the attorney-in-fact in question must execute a deed in which he/she declares his/her will to renounce the power of attorney and must also proceed to notify it reliably to the appointing company, otherwise it cannot be registered in the corresponding Mercantile Registry (see in this respect the resolution of the General Directorate of Registries and Notaries of May 21, 2001).
Of course, as with any kind of power of attorney, it can be modified a posteriori to expand or reduce the powers of the attorney-in-fact.
Only the representative of the company (i.e., the administrator) must appear in his capacity as representative of the principal, and it is not necessary that the attorney-in-fact to whom the powers are conferred appear.
Once the power of attorney has been granted, a certified true copy of the power of attorney will be delivered at the same time so that it can be used as appropriate.
Indeed, in order for the appointed attorney-in-fact to be able to make use of the commercial power of attorney and contract in the economic traffic, it will be necessary that the company delivers to him the certified copy of the power of attorney, so that he can already use it and accredit his representation with the third parties he contracts with.
Of course, the notary can go to your home to sign the power of attorney, since the law obliges to guarantee the notary public service to all those handicapped, sick or with reduced mobility who cannot go to the notary's office by themselves.
However, it will be necessary to take into account that, in such a case, as a matter of territorial competence of the Notary requested, it must be a Notary of the locality in question in which the domicile of the person who is unable to travel is located.
In the event that the power of attorney granted is to be effective outside the Spanish state, it will be necessary to apostille it, that is to say, to carry out an additional procedure, provided for in the XII Hague Convention of October 5, 1961, which will allow it to be effective in a country other than Spain, provided that said country has signed this international convention.
This procedure of apostille will be carried out at the College of Notaries of Catalonia and, to this effect, its management can be carried out by the interested party himself or, if he wishes, he can entrust it to the notary's office itself, so that, once the procedure has been carried out, the apostilled power of attorney will be delivered to him.
As a general rule, the power of attorney will be granted in Spanish (or, as the case may be, the co-official language of the Autonomous Community in question). However, it is possible to grant a "double-column" power of attorney, that is to say, written simultaneously in Spanish and its corresponding translation into a foreign language, as long as the authorizing Notary knows that language and can verify that the content is the same.
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It is enough that the person who wishes to formalize the general mercantile power of attorney goes to the notary's office with his ID card. In the event that said person is a foreigner, he/she must present to the notary his/her original and valid passport. In addition, it is essential to present the NIE together with the mentioned passport.
It is essential that the representative of the company granting the power of attorney presents before the notary the authentic copy of the deed where his appointment in said company and his powers appear (e.g. the notarial deed where he is appointed administrator of the company). However, from the notary's office we can access telematically to the Mercantile Registry where the company is registered to verify that such representation is real and in force at the moment of granting the power of attorney.
IMPORTANT! In the event that the administrative body of the granting company is formed by a board of directors, the certificate of the resolution authorizing the granting of the commercial power of attorney must be provided.
The relevant documentation relating to the company within which the general commercial power of attorney is to be granted must be submitted to the notary. For this purpose, a certified copy of the deed of incorporation of the company must be submitted, as well as any subsequent deed modifying the articles of association (such as, for example, a change of company name, change of registered office, etc.).
Practically every time someone goes to sign at a notary's office on behalf of a company, it is mandatory to identify at that moment, before the notary, which partners (even if not present) within the company hold more than 25% of the capital stock of the company at that moment. In order to carry out such identification, the Law obliges to exhibit the authentic copy of the corresponding notarial act called "Act of beneficial ownership".
Now then, in case of forgetting to provide this document or not finding it, from the notary's office itself it is possible to verify telematically on a common database, before which notary the same one was granted and to solve this oversight. In the event of not having the said deed drawn up and signed, or having it out of date because the percentages of the capital stock among the partners have changed, the notary's office itself will prepare the said deed for you at the moment.
The person who receives the power of attorney (attorney-in-fact) is not obliged to go to the notary's office on the day the power of attorney is signed. It is sufficient that the person granting the power of attorney identifies him/her sufficiently. Specifically, it is sufficient to provide the name, surname, address and National Identity Card number of the aforementioned person. In practice, in order to avoid errors, a photocopy of the latter's National Identity Document is usually provided. If the attorney-in-fact is a company, the name or corporate name, registered office and CIF number must be provided.
