La extralimitación en el ámbito de la actuación representativa

Abstract

Decentralization in decision-making can bring with it the misuse of the power of representation through overreaching and abuse, if not through the exercise of a power that never existed or was extinguished. The object of this work is to analyze the peculiarities of the excess, starting from its particular position, which it has been called "apparent representation" or "falsus procurator". It is the one and only of the four figures where there is a representation, in a broad sense, and lack of representation, in the concrete case. Studying the historical evolution of representation, from the Roman law to the present day, in a scenario where the power and mandate are intermingled, we have laid the foundations of what we consider essential for the analysis of overreaching. The internal, or legitimating, and external, or representative, element are guided by a common cause, or interest, which links the "ad intra" and "ad extra" planes. The interest of the "dominus" can be used as a measure of the acts of the representative and conditions the limits, which can be of two types: formal (objective, subjective and temporal) and material. Thus, there will be no excess when the formal limits of power have been overstepped but the performance takes advantage of the principal's interest. The transfer or not, the formal limits, it may be able to distinguish the excess of the abuse, because in both the interest is injured. It is not worth to confuse the limits with the instructions of management, since while they are consubstantial to the power and determine the extension of the "potestas" of the representative; all too often, these are accidental elements of the contract of management that accompany to the representation. Once the representative mechanism stars, the interest of the "dominus" is joined the third, which it can enter into conflict with. The interpretive work will tell when there is excess and what is the most worthy interest of protection. After analyzing theories about the overextended business, we believe that they are not incompatible: it is an incomplete business due to a lack of an essential element, which can be completed by ratification before being revoked by the third party. With ratification it transforms into a valid and effective business. With the complaint (revoking, as stated in article 1.259 of the Code), the third party requests the nullity of the effects derived from its irregularity. While ratification demands the will of the "dominus", the advantage or "utiliter" is imposing on the legal presumption. The article 1.715 of the Code refers to a special type of utility, "utiliter gestum", which only requires the obtaining of an advantage, not its effective use, it is based on a legal presumption. Along with the responsibility of the representative, we defend the responsibility of the "dominus" against the third party for the creation of the situation of risk, by virtue of the benefit that the activity reports to him. The former may respond contractually (or compulsively) ad intra and ad extra, the latter, does so by way of tort to the third party. Overstepping in legal representation is due to the excess in the powers obtained by law or procedural resolution, or without proper authorization. It admits ratification by the represented party, under certain presuppositions, or judicial approval if it is in the interest of the represented party. The third party may only address the representative, not the principal. The organic representation is mediate or second degree. It is possible to limit ad extra powers in personalist societies, not in capitalist societies. In excess, the society responds if the social object protects the act. The body legitimized by the statutes, will grant the ratification. The extended preventive power is designed due to the incapacity of the grantor, while the "ad cautelam" power requires incapacitation. It raises the problem of control in the exercise of power. Although we defend the notarial means procedure, we believe preferable the jurisdictional way, being provided with the maximum guarantees and leading a free public service to the citizen. In this scenario the voluntary representation, derived from the preventive power, and the legal one, agreed by the judge can come together.