ON THE ELIGIBILITY FOR REGISTRATION OF AN AGREEMENT APPOINTING A REPRESENTATIVE WITHOUT POWER OF ATTORNEY (ON THE OCCASION OF THE DIRECTORATE-GENERAL OF REGISTRIES AND NOTARIAL AFFAIRS

Abstract

Old and recent decisions by the Directorate-General of Registries and Notarial Affairs have ruled against the registration of agency contracts wherein the agent is not granted power, the DG's feeling being that such contracts contain un irremediable defect. This view is largely based on the rule of caselaw that states that no third parties must be harmed by a possible retroactive ratification of the agent as a holder of actual powers. This paper argues that the lack of legal standing on the part of the falsus procurator can (and must) be categorized as a remediable defect, giving rise to the suspension of registration. Several reasons are given for this view (inter alia, protection merited under art. 1259 of the Civil Code, analogy with annullable contracts and contracts subject to suspensive conditions), the main reason being that this position espousing an a-priori-based categorization is generally going to bar registration even to false agency agreements in which no third parties stand at risk of potential harm. Moreover, any potential harm to third parties (which would make the retroactive application of the ratification ineffective vis-à-vis those particular third parties) can be taken into consideration when and if it ever happens, when the ratification is submitted for registration. The functional scope of operation and efficacy of caveats of suspension and priority thus granted are no obstacle to such an outcome, because a) sometimes caveats are not in order (a caveat would only be included at the request of one of the parties); b) sometimes, even if a caveat is made and no third-party rights are acquired, there will be the advantage of being able to extend the deadline for successful registration of the ratification (due to its extension possibility); and c) if there are any such rights acquired over the intervening time period, under their telling influence the registrar will refuse to register the ratification, in order to avoid harming the third party.