Who is the representative of the enterprise?
Running a business requires a certain amount of time. This is especially true for young enterprises and those that operate on a large scale. In such situations, a representative of the company can help, who will relieve the company's superiors.
What is a representative office?
Pursuant to Art. 95–97 of the Civil Code, subject to exceptions in the Act provided for or resulting from the properties of a legal transaction, a legal action may be performed by a representative. A legal act performed by a representative within the scope of his authorization has direct consequences for the represented one.
Authorization to act on behalf of someone else may be based on the act (statutory representation) or on the representation of the person represented (power of attorney). In case of doubts, an active person in the premises of an enterprise intended to serve the public is deemed to be empowered to perform legal transactions, which are usually performed with persons using the services of this enterprise.
Representation is therefore a form of representation of a given entity in external relations - most often with clients, but also with courts, banks and various administrative bodies. A representative is a person empowered to run the affairs of a given enterprise, and the scope of his competences is most often determined by persons running a business. Judgment of the SA in Kraków of July 10, 2018 (file reference number I ACa 1443/17)
The limits of the power of attorney are determined independently and unilaterally by the principal himself in the declaration of will to grant a power of attorney to a specific person (the content of the power of attorney). The mere granting of a power of attorney does not have any obligation effects between the principal and the attorney. It authorizes the agent to act on behalf of the represented person, but does not oblige him to do so. This is called the existence of the power of attorney.
A representative of the enterprise and the scope of its competences
Representation is a form of power of attorney granted to a specific person so that they can perform specific activities for their principal. In the case of large enterprises, it is basically necessary - the entrepreneur does not have time to perform all activities personally and participate in every business meeting.
The scope of the representative's competences depends on the will of the principal himself and his current needs. The granted power of attorney may be revoked or changed (limited or extended) at any time. Judgment of the SA in Poznań of March 8, 2018 (file reference number I ACa 712/16)
A proxy, in accordance with the essence of a power of attorney, i.e. a legal relationship based on trust, should act in accordance with the presumed will of the principal, and in any case should not take actions contrary to the actual or implied will, even if they fall within the scope of the power of attorney granted. Such action of the representative, although formally correct, may be considered contrary to the principles of social coexistence and may result in the representative's liability for damages towards the principal. It is possible that a legal act between the attorney and a third party is considered contrary to the principles of social coexistence, when the third party knew or, possibly with due diligence, could learn about the conclusion of a legal act by the attorney contrary to the will of his principal.
The attorney representing a given entrepreneur has the right to:
- court actions, including filing lawsuits, responses to a lawsuit, appeals, complaints, appeals, motions and participation in hearings and court sessions;
- out-of-court activities - concluding contracts, making payments related to running a specific business, dealing with the cases of contractors and tax or administrative issues.
How to appoint a company representative?
Appointing a representative is not a difficult activity, although it requires a written form. The principal appoints a specific person to represent a given enterprise, determines the duration of his rights and their detailed scope. In the content of such a power of attorney, it is worth clarifying the issue of granting further powers of attorney by the representative himself - if the principal does not wish to do so, he should expressly prohibit this type of practice.
The representative may be changed at the will of the entrepreneur, there are also no obstacles for the company to have a greater number of proxies. In this case, however, the scope of their competences should be defined - they should complement each other.
As a rule, appointing an attorney does not require the form of a notarial deed, but if the representative must perform a notarial act (e.g. purchase real estate for a given enterprise, sell part of the real estate belonging to the enterprise), his power of attorney must be granted in the form of a notarial deed.
The cost of a notarial power of attorney including the authorization to perform one specific activity is a maximum of PLN 30 + VAT. In the case of powers of attorney with broader powers (to perform more activities), the costs increase to the amount of PLN 100 + VAT. To the above rates, you should also add the price of extracts from notarial deeds, which amount to a maximum of PLN 6 + VAT.
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Proxy - a special form of representation
Running a business can take place in various forms - sole proprietorship, civil law partnership, commercial law company. Usually, in such cases, the company is subject to mandatory registration in the Central Register and Information on Economic Activity or in the National Court Register. In both cases, entrepreneurs gain the right to appoint a special representative of their company, which is, of course, a commercial proxy.
Pursuant to Art. 1091 of the Civil Code, the procuration is a power of attorney granted by an entrepreneur subject to the obligation to enter into the Central Register and Information on Economic Activity or to the register of entrepreneurs of the National Court Register, which includes authorization to perform judicial and extrajudicial activities related to running an enterprise. You may not limit the procuration with effect against third parties, unless a special law provides otherwise. Judgment of the SA in Kraków of March 29, 2019 (file reference number II AKa 241/17)
The commercial proxy is entitled to independently represent the company in matters related to its activities. Procuration, as an institution of commercial law, regulated by the Civil Code, is a type of representation, or more precisely, a power of attorney that can only be established by an entrepreneur. It is subject to entry in the Central Register and Information on Economic Activity or in the register of entrepreneurs of the National Court Register, which includes authorization to perform judicial and extrajudicial activities related to running the enterprise, and in accordance with art. 1091 § 2 of the Civil Code, the procuration may not be limited with effect against third parties, unless a specific provision provides otherwise. The restrictions are effective only in the relationship between the principal and the proxy and may lead to the commercial proxy's liability for damages, but the actions performed by him on behalf of the principal remain valid. Possibilities of limiting the procuration under Art. 1094-1095 of the Civil Code are irrelevant in the case under examination. Proxies represent the company in accordance with the provisions on commercial power, with only restrictions resulting from them, therefore regardless of the manner in which the company is represented.
A proxy is undoubtedly a person obliged to deal with property matters on the basis of a legal provision, decision of an authority or contract within the meaning of Art. 296 of the Penal Code, which involves the conduct of all or part of the company's interests, with the right to independently make important decisions regarding its property. A commercial proxy may be the subject of a breach of trust, because he or she deals with the property matters of a given entity primarily on the basis of an agreement, which is the power of attorney granted to him. It is on the basis of this power of attorney that the proxy is obliged to deal with the principal's affairs and must act in his favor and in his interest.
The company representative is in fact an attorney dealing with the broadly understood interests of the company. In practice, this term is used for every person employed in a given workplace. In legal terms, however, this concept should be equated with a person who has the authorization to perform judicial and extrajudicial actions on behalf of the owner of a given enterprise. Remember that entrepreneurs who are subject to mandatory entry in CEIDG or KRS have the option of appointing a special representative for their company, who is referred to as a proxy.