Powers of attorney in German-Spanish legal relations
In German-Spanish legal relations, it often happens that the parties to a contract cannot appear together to sign a document and are therefore represented by an authorised representative when the contract is concluded. Representation is permitted under both German and Spanish law, unless it concerns rights of a highly personal nature (e.g. marriage). If a non-entitled party enters into a legal transaction for another party, it is null and void unless the represented party subsequently ratifies the transaction.
The special Power of Attorney
The special power of attorney – e.g. for the purchase or sale of a property, for a bank account, for the acceptance of an inheritance, etc. – must describe the scope of the authorised representative’s duties in detail. Often it also contains provisions as to whether the authorised representative may grant sub-authorisations and is exempt from the restrictions on self-contracting.
The general Power of Attorney
It is common practice among married couples and in business transactions for the spouses to give each other mutual power of attorney or for the company to grant a general power of attorney to an authorised representative. In German law, a general power of attorney is limited to a short text such as “the authorised representative may carry out all legal transactions and legal acts which may be carried out by the principal or vis-à-vis the principal”. Spanish law, on the other hand, requires the drawing up of a detailed catalogue in which the legal transactions and legal acts are described in detail. Therefore, Spanish general powers of attorney usually have a larger scope.
The postmortem Power of Attorney
German law recognises a “power of attorney beyond death”, also known as post-mortem power of attorney. The post-mortem power of attorney does not expire upon the death of the principal, so that the authorised representative can still act effectively after the death of the principal, but now on behalf of the heirs, who in turn have the right to revoke the power of attorney at any time. Spanish law does not recognise the post-mortem power of attorney; according to the Codigo Civil (Art. 1732 para. 3), the power of attorney expires upon the death of the principal. What is in dispute is what happens if the principal stipulates in the power of attorney that the validity of the power of attorney is subject to German law. In principle, in this case of choice of law, the post-mortem power of attorney would also have to be recognised in Spain. Legal practice shows that there are sometimes problems in this respect.
The person giving the power of attorney must identify himself to the Notary and provide his personal details. The authorised representative need not be present when the power of attorney is granted; however, he must be clearly described and thus identifiable. While in German law, powers of attorney can be granted in various legal areas without any form requirements, according to Spanish law, powers of attorney must be granted in notarial form. If a German power of attorney is to be used in Spanish legal relations, it must be accompanied by a certified translation. Furthermore, the German power of attorney must be provided with the so-called Apostille of The Hague. The district court in whose district the Notary is domiciled, is responsible for granting the power of attorney.