Power of attorney § 54 HGB - Leasing
November 15, 2010 | 35,00 EUR | answered by RA Kristian Hüttemann
Is an employee allowed to sign a lease agreement for operating resources (in this case a copier) without explicit authorization according to § 54 para. 2?
In my opinion, a leasing agreement could also be considered a 'loan agreement' or a continuing obligation.
The employment contract only states: 'The employee is granted power of attorney according to §§54-58 HGB.'
I look forward to your response!
Dear inquirer,
Thank you for your inquiry, to which I would like to respond based on the facts you have provided as follows.
I.
The power of representation according to § 54 HGB is a private law authorization, the granting and termination of which is subject to the provisions of §§ 167ff. BGB. Like any other private law authorizations, the scope of the power of representation is subject to the principle of freedom of contract and the free disposal of the principal.
II.
Within this framework, the law provides for three different types of power of representation in § 54 paragraph 1 HGB. It is important to distinguish between:
- General power of representation
- Generic power of representation
- Special power of representation
The general power of representation authorizes the performance of all business transactions typical for the industry that are usually part of the ordinary course of business. The generic power of representation covers the execution of specific and clearly defined types of transactions (such as the conclusion of contracts for the purchase of a business). The special power of representation, on the other hand, only authorizes the execution of individual and specifically designated legal transactions.
III.
Based on this, the legal assessment of the facts you have presented leads to the conclusion that the conclusion of the leasing contract is covered by the granted power of representation.
This conclusion already follows necessarily from the wording of the authorization granted to the employee. It does not contain any limitations on the authority that would require the authorized person to obtain the consent of the represented party when concluding certain legal transactions. The wording in the authorization text, stating that the employee receives power of representation according to §§ 54-58 HGB, rather refers to all variations of the power of representation provided for by law.
A different assessment would only be necessary if the wording of the authorization provided indications for it. This is not the case. As the concluded leasing contract was a business related to the operation of the commercial enterprise, it is therefore covered by the employee's power of representation.
IV.
A different assessment is also not justified by the provision of § 54 paragraph 2 HGB. The breaking of the representation effect applies only if one of the cases of so-called extraordinary transactions designated there actually exists. However, such an exceptional circumstance is not present here. In particular, the leasing contract in question is not legally equivalent to a loan agreement. They are fundamentally different types of contracts that follow their own provisions.
I hope this provides you with an adequate overview of the legal situation. Feel free to exercise your right to ask for clarification if there are any uncertainties.
Best regards,
Kristian Hüttemann
Attorney at Law
