Mandate: Formation, Powers, and Duties

Overview

A person may authorize someone else to sign a purchase, negotiate a settlement, or receive payment on their behalf. The legal analysis begins with the act entrusted to the representative, the source of the authority, and the limits imposed on its exercise. Calling an assignment a mandate (mandat) does not establish its classification. Under art. 2130 CCQ, contractual representation in a juridical act involving a third person supplies the organizing principle.

The mandator (mandant) supplies the authority; the mandatary (mandataire) accepts responsibility for exercising it. Their internal relationship must be distinguished from the resulting transaction with the third person. A breach of instructions can engage the mandatary's responsibility toward the mandator while a separate rule protects the third person's contract. The lesson on third persons and apparent authority examines that external relationship.

This lesson addresses ordinary mandate. A protection mandate has a distinct protective purpose and special formation, implementation, supervision, and termination rules. An ordinary power of attorney should therefore never be treated as interchangeable with a protection mandate merely because both concern another person's property.

Learning Objectives

• Classify the undertaking and determine how authority was accepted, conferred, and limited.
• Apply the parties' duties of performance, loyalty, information, cooperation, and financial settlement.
• Distinguish the ending of representative authority from the obligations that survive termination.

Classification and formation

The object of representation must be a juridical act (acte juridique): the intended creation, modification, transfer, or extinction of legal rights or obligations. A legal opinion ordinarily supplies a service. Negotiating or concluding an agreement in the client's name involves representation. The same professional relationship may contain both activities. Identify the principal and secondary obligations before choosing a single classification, applying rules to distinct components, or recognizing a mixed contract. See enterprise and service contracts.

An employee can also represent an employer in a transaction. Employment status answers a different question from authority to bind another person. Equally, administering another person's property does not invariably involve mandate: the source and purpose of the administrator's powers matter. A power arising directly from legislation should not automatically be recast as a consensual mandate. The civil-law analysis proceeds from the actual undertaking rather than a general common-law category of agency.

Mandate requires consent and the capacity required for the contemplated undertaking. Acceptance may be express or tacit under art. 2132 CCQ. Performance and, in appropriate circumstances, silence can disclose acceptance; silence is not an automatic acceptance of every unsolicited request. An unsigned authority sent to a prospective representative must therefore be assessed together with what that person subsequently did and understood.

Ordinary mandate can generally be oral, subject to applicable formal requirements. A power of attorney (procuration) denotes the authority and, where one exists, the writing recording it. The writing provides evidence of powers; its existence alone does not prove every requirement of the contract. Record the parties, authorized acts, restrictions, duration, reporting arrangements, and acceptance. Distinguish a failure to establish the contract from difficulty proving the content of an otherwise valid oral agreement.

Determining the scope of authority

A special mandate concerns a particular matter; a general mandate concerns all the mandator's affairs. That distinction differs from the distinction between carefully specified and generally expressed powers. Under art. 2135 CCQ, generally worded authority permits acts of simple administration (simple administration). An ordinary mandate must expressly confer authority for acts beyond that category. A phrase such as “manage everything” is consequently a poor substitute for specifying a proposed disposition or financing transaction.

Where property administration is involved, simple administration centres on preservation and maintenance of normal use. Full administration (pleine administration) entails a broader orientation toward making property productive, increasing the patrimony, or achieving its appropriation. Its broader powers remain directed to the beneficiary's interests and subject to the constituting instrument. Broad authority does not authorize self-enrichment or eliminate contractual restrictions.

Interpret the provisions together and in their factual setting. Art. 2136 CCQ includes powers that can be inferred from the mandate and acts flowing from those powers that are necessary for performance. Art. 2137 CCQ recognizes powers implicit in the profession or functions involved. These rules make authorized representation workable, but they do not convert every convenient act into an authorized one. An express restriction remains part of the analysis.

Suppose a representative may negotiate a purchase up to $40,000 but must obtain approval before signing. Communicating offers and requesting specifications may fit the assignment. Signing a $39,000 purchase without approval raises a separate restriction even though the price ceiling is respected. A later dispute requires the instructions and exchanged messages, not merely the signature and final price. Whether the supplier can nevertheless enforce the contract belongs to the external analysis.

Performance, prudence, and information

Art. 2138 CCQ requires performance of the accepted mandate with prudence and diligence, together with honesty and loyalty in the mandator's best interest. Assess conduct against a reasonably prudent and diligent person in comparable circumstances. A professional is assessed in light of the competence reasonably expected of that professional. The standard does not demand perfection, but an inexperienced representative cannot simply disregard foreseeable deadlines or evident risks.

Many performance obligations are obligations of means (obligations de moyens). The mandatary must deploy appropriate efforts without necessarily guaranteeing the commercial outcome. This classification must remain sensitive to the particular undertaking: returning money actually received cannot be analysed as though it were merely an attempt to obtain favourable negotiations. Failure of the transaction and faulty execution are distinct evidentiary propositions.

The duty to inform (obligation d'information) applies on the mandator's request and when circumstances justify an update. Completion must be reported without delay under art. 2139 CCQ. Information capable of changing instructions should not be withheld until the mandator happens to ask the right question. A significant cost increase, a changed contractual term, or a newly discovered practical obstacle may call for prompt communication.

For example, a mandatary negotiating delivery learns that the supplier can meet the price only by removing a warranty. Repeating that negotiations are “on schedule” fails to convey the development that matters to the mandator's decision. The representative should explain the proposed change and seek instructions within the available time. A damages claim still requires proof of injury and causation: identify the choice proper disclosure would have permitted and the loss attributable to the omission.

Loyalty and conflicting interests

Loyalty (loyauté) requires directing the exercise of authority toward the mandator's best interest and avoiding a conflict of interest (conflit d'intérêts) between that interest and the mandatary's own. A transaction need not be financially disastrous before a conflict matters. A representative who secretly favours a supplier because of a personal benefit compromises the process through which the mandator's choices are made.

Art. 2146 CCQ prohibits personal use of entrusted property or information obtained in performance unless the mandator consents or the use follows from the law or the mandate. Its financial consequences distinguish the subject used. Unauthorized use of information entails an amount equivalent to the resulting enrichment; use of property entails appropriate rent or interest on money used. Compensation for the mandator's injury may also be owed. Analyse these heads separately to avoid confusing the gain obtained with the loss suffered.

Art. 2147 CCQ addresses the mandatary becoming a party, directly or through an intermediary, to the act entrusted to them. Authorization or the mandator's knowledge of the mandatary's position as cocontractant can permit the transaction. Otherwise only the mandator may invoke the resulting nullity (nullité). Unlike the special double-mandate remedy, this provision does not make proof of injury a stated condition of nullity.

If a representative entrusted with a sale secretly buys through another person, a fair price alone does not resolve the undisclosed self-contracting problem. Preserve the ownership links, instructions, disclosures, and authorization. Conversely, proof that the mandator knowingly authorized the representative's purchase changes the analysis of art. 2147 CCQ, while leaving other applicable duties and the actual terms of that authorization to be examined.

Double mandate and personal execution

Double mandate (double mandat) concerns representation of parties to the same act whose interests conflict or may conflict. Art. 2143 CCQ requires disclosure to each mandator unless usage or their respective knowledge dispenses with it, and requires impartiality toward each. Professional or sectoral rules may impose additional restrictions; the civil rule cannot establish permission under every regulated practice.

The special nullity remedy requires a mandator who was unable to know of the double mandate and who suffered injury. Both conditions matter. Proving that the representative acted for both sides does not alone establish entitlement to annulment. Ordinary remedies for a breach of duty must also be considered according to their own requirements.

Personal execution is the starting point under art. 2140 CCQ. A substitution (substitution) may be authorized. It becomes necessary where unforeseen circumstances prevent performance, the mandator's interest requires replacement, and timely notice to the mandator is impossible. These requirements should be tested individually. Ordinary convenience or a crowded calendar does not itself establish the exceptional situation.

Under art. 2141 CCQ, an unauthorized substitution makes the original mandatary answer for the substitute's acts as their own. When substitution is authorized, responsibility concerns care in selection and instructions; the mandator has a direct action against the substitute in either case. Assistance is different: under art. 2142 CCQ, another person can assist and receive delegated powers unless the mandator or usage prohibits it, but the original mandatary remains answerable for that assistance. Calling a replacement an “assistant” cannot change what actually occurred.

Cooperation and financial obligations

The mandator must cooperate to promote performance under art. 2149 CCQ. Cooperation includes refraining from obstruction and supplying information or decisions that the mandatary cannot reasonably obtain alone. A mandator who withholds the required approval until an offer expires cannot assess the representative's conduct as though that obstacle never existed. The causal contribution of each party must be reconstructed.

A mandate between two natural persons is presumed gratuitous, while a professional mandate is presumed onerous under art. 2133 CCQ. These presumptions can be displaced. Professional activity here is not confined to membership in a professional order. Where neither presumption resolves the issue, establish the parties' intention instead of assuming that every commercial-looking assignment carries a fee.

Art. 2134 CCQ determines remuneration through the contract, usage, law, or value of services rendered. Art. 2150 CCQ requires necessary advances when requested, reimbursement of reasonable expenses, and payment of remuneration due. Interest on disbursements runs from payment under art. 2151 CCQ. Separate the agreed fee, actual disbursements, unnecessary spending, and interest rather than presenting an unexplained aggregate invoice.

Art. 2154 CCQ provides indemnification for injury suffered in performing the mandate where no fault is attributable to the mandatary. Under art. 2155 CCQ, an unsuccessful affair does not by itself eliminate sums due to a faultless mandatary. A contractual remuneration condition still requires examination. Equally, a minor breach should not mechanically erase every earned amount: identify the relevant obligation, its performance, the contractual terms, and the financial consequences of the proven fault.

Accounts, delivery, and retention

Rendering of account (reddition de comptes) permits the mandator to verify what was done with the authority and property entrusted. An intelligible account links receipts and expenses to supporting documents and shows what remains to be delivered. Merely sending bank statements may leave unexplained transfers, missing invoices, or personal use of funds unresolved. Where the mandatary administers property of another, the applicable administration rules also govern periodic accountability.

At termination, art. 2184 CCQ requires an account and delivery of everything received in carrying out the functions, even what was not owed to the mandator. The representative cannot simply appropriate an unexplained overpayment. Determine its source, record receipt, and address the rights of the persons concerned. Interest on the account balance runs from default, which differs from the starting point for interest on expenses advanced by the mandatary.

The right of retention (droit de rétention) and deduction under art. 2185 CCQ secure amounts owed by reason of the mandate. The mandatary may deduct amounts owed from money to be delivered and retain what the mandator entrusted for execution until payment. The asserted debt and the relationship between the property and the mandate require proof. Possession does not make any unrelated object a lawful security for any disputed claim.

For an account showing $12,000 received, $1,600 in justified expenses, and an agreed $900 fee, identify whether expenses were already reimbursed before deducting them. Otherwise the same expenditure is recovered twice. Disputed expenditures should remain visible as disputed items. Delivering an account supports verification even where the parties disagree about the final net payment; retention does not remove the need to explain the administration.

Termination and surviving duties

Revocation (révocation) by the mandator and renunciation by the mandatary terminate the charge. Art. 2175 CCQ also addresses ordinary extinction, disappearance of authority, death, bankruptcy, and, in specified circumstances, adult tutorship or homologation of a protection mandate. The onset of factual difficulty or incapacity must not be equated automatically with a judicial measure. The applicable cause and effective date require identification.

Under art. 2176 CCQ, revocation permits recovery of the power-of-attorney writing for annotation, with a copy showing termination available to the mandatary; a notarial instrument has particular annotation arrangements. Appointing another mandatary for the same affair revokes the first upon notification under art. 2180 CCQ. Simply signing a replacement appointment privately does not establish that notification occurred.

Art. 2178 CCQ permits renunciation by notice and preserves remuneration earned to that date for an onerous mandate. Art. 2181 CCQ preserves the revoking mandator's existing obligations. Both provisions impose reparation for injury from termination without a serious reason and at an inopportune moment. Apply those cumulative statutory conditions and identify the resulting injury, rather than assuming every unilateral termination is wrongful.

Art. 2179 CCQ permits commitments against unilateral revocation or renunciation for a determined period or to secure a particular obligation. Termination in breach of such a commitment nevertheless ends the mandate; contractual responsibility can follow. Distinguish the effectiveness of ending authority from liability for breaking the promise. Where mandate was gratuitous, art. 2148 CCQ allows the court to reduce damages when assessing the extent of the mandatary's responsibility; it does not erase the duties.

Art. 2182 CCQ requires necessary follow-up and acts that cannot be postponed without risk of loss. The duty is protective, not a general authorization to begin new business. Art. 2183 CCQ imposes specified notification and urgent preservation duties following the mandatary's death or relevant protective measure on persons who know of the mandate and can act. Final accounting and financial settlement also survive.

Worked application: ending a purchase assignment

Factual Scenario

Hypothetical. A mandator revokes authority the day before an approved purchase is due to close. The representative has already paid a necessary inspection expense, and an outstanding notice must be transmitted immediately to prevent loss of a deposit.

Practice Checklist

• Identify the juridical act, parties, source of authority, acceptance, and applicable formal requirements.
• Read the whole authority instrument and distinguish express limits from necessary incidental powers.
• Record instructions, changes, reports, deadlines, conflicts, authorizations, and any use of assistance.
• Separate proof of faulty conduct from an unfavourable result and establish the causal injury claimed.
• Calculate remuneration, reasonable expenses, interest, compensation, and the account balance separately.
• Establish the cause, date, and notification of termination, then address urgent follow-up, delivery, and third-person exposure.