Libro Quinto Título II. Del mandato

By mandate, a person entrusts another with the performance of one or more acts or transactions.

Mandate may be granted with or without representation. In mandate with representation, the mandatary acts in the name of the mandator and the transactions performed within the powers conferred upon him directly bind the represented person. In mandate without representation, the mandatary acts in his own name, without third parties having a direct action against the mandator.

The mandate must be set forth in a public deed as an essential requirement for its existence, and may be accepted expressly or tacitly.

A public deed is not necessary:

1°.When dealing with matters whose value does not exceed one thousand quetzales, in which case the mandate may be granted in a private document, legalized by a notary, or in a record drawn up before the mayor or local judge, with the legal formalities.

However, if the mandate refers to the alienation or encumbrance of immovable property or real rights therein, the granting of the power in a public deed is mandatory; and

2°.When representation is conferred by power-of-attorney letters for attendance at meetings and other acts in which the law permits it.

The mandate for judicial matters is subject, especially, to what the procedural laws establish.

All acts or transactions for which the law does not require personal intervention by the interested party may be the object of mandate.

No power may be given to make a will or to donate mortis causa, nor to modify or revoke such dispositions.

The mandate is gratuitous only if the mandatary expressly records that he accepts it in that manner.

The mandate is general or special. The general mandate comprises all the businesses of the principal, and the special mandate is limited to one or more determined matters.

The representatives of minors, incapacitated persons, or absentees may not grant a general power of attorney but only a special power of attorney for a specific matter that cannot be personally attended to by them.

A special power is required to donate inter vivos, to contract marriage, to execute marital capitulations, to agree on the bases relating to separation or divorce, to sue for the nullity or insubsistence of marriage, to constitute family patrimony, to recognize children and to deny paternity.

The general power of attorney requires a special clause to alienate, mortgage, guarantee, settle, encumber or otherwise dispose of the principal's property, and for all other acts for which the law requires it.

The authority to enter into transactions or contracts implies the authority to execute the corresponding documents.

A power of attorney from several persons may not be exercised at the same time when there is a conflict of rights among them. Nor may a single mandatary execute contracts, while at the same time representing the rights or interests of both contracting parties, without authorization from the principals.

The husband may not, without the express consent of the wife, nor may she without his, grant power of attorney for matters relating to the common property or for contracts from which obligations arise for both.

On behalf of legal persons, power is conferred by the individual persons who represent them, the mandate being limited to the transactions that are the object of the company.

For legal persons to exercise mandate, it is necessary that the operations to which the power refers fall within the course of business of such persons, or that, in accordance with the instrument of their formation or respective bylaws, the managers or representatives be empowered to accept them.

A bankrupt person may not exercise a mandate until rehabilitated; a person sentenced for any crime until the sentence has been served or such person has been rehabilitated; and, in special cases, persons to whom the law prohibits it or who have incompatibility or an impediment.

The mandate is essentially revocable, even when it has been conferred with a time limit or for a specified matter; but if it has been accepted, revocation shall produce effect only from the date and time it is notified to the attorney-in-fact.

A power granted abroad subject to the external formalities prescribed by the laws of the place in which it is granted is valid; but if, for the act or contract that is the object of the power, the law of Guatemala requires special authority, it must be subject to the provisions thereof.

The power granted to two or more persons shall be exercised jointly if the principal did not state that it be exercised separately.

The mandate in which the attorney-in-fact is conferred the power to grant powers of attorney or to substitute the one granted to him does not authorize the mandatary to confer powers not comprised in the mandate, nor broader than those conferred upon him.

Anything done by the agent exceeding the limits of the mandate or without the latter containing the necessary powers is void.

The certified copy of the public deed of the mandate and that of the revocation must be presented to the Registry of Powers.

Upon acceptance, the mandatary is obligated to perform the mandate with diligence and to answer for the damage and losses caused to the mandator by failure to perform it.

The agent must abide by the principal's instructions, and must not depart from nor exceed the powers and limits of the mandate.

He is obligated to render an account of his administration, to report on his acts and to deliver the principal's property that he has in his possession, at any time that the latter requests it.

The agent must perform the mandate personally and may substitute it only if expressly empowered to do so.

The agent is free from liability when he makes the substitution in the person designated by the principal.

If the designation is made by the agent, he is liable if the substitution falls upon a person who is notoriously incapable or insolvent.

Once the mandate has been accepted, the agent may not renounce it without just cause when there is pending business whose interruption may result in losses to the principal; and if he renounces it, he must continue managing the pending matters until he is replaced.

When the agent becomes disqualified or supervening causes of incompatibility arise with respect to him and the principal has not designated a substitute, the judge may appoint one under his liability until the principal does so, but only to continue pending matters of an urgent nature.

Without the prior written authorization of the principal, the mandatary may not use or acquire for himself or for his legal relatives the sums or property that he has received from him or on his account; under penalty of nullity and payment of damage and losses that may accrue to the principal. 171 172

If an unforeseen and well-founded cause should, in the judgment of the agent, render execution of the instructions received harmful, he may suspend performance thereof, on his own responsibility, reporting to the principal by the fastest possible means.

The principal must fulfill all the obligations that the mandatary has contracted within the limits of the mandate.

To the extent the mandatary has exceeded the mandate, the principal is not bound except when he ratifies it expressly or tacitly.

The principal must advance to the mandatary, if the latter so requests, the amounts necessary for performance of the mandate.

If the mandatary has advanced them, the principal must reimburse them, even if the transaction has not been successful, provided the mandatary has not incurred fault.

The reimbursement shall include interest on the amount advanced, counting from the day on which the advance was made.

The principal must also indemnify the agent for all damage and losses caused to him by performance of the mandate, without fault or intent on the part of the same agent.

The mandatary may retain the things that are the object of the mandate until the mandator makes the compensation and reimbursement referred to in the preceding articles.

If two or more persons have appointed a mandatary for a common business, they shall be bound jointly and severally for all effects of the mandate.

The mandate terminates:

1.Upon expiry of the term for which it was granted;

2.Upon conclusion of the matter for which it was given;

3.Upon revocation;

4.Upon resignation by the mandatary;

5.Upon death or interdiction of the mandator or the mandatary;

6.Upon bankruptcy of the mandator or upon supervening occurrence with respect to the mandatary of a cause that pursuant to law disqualifies him from exercising mandates; and

7.Upon dissolution of the legal person that granted it.

The revocation shall be notified both to the mandatary and to the persons interested in the pending matter or business.

A revocation notified only to the agent may not be opposed to third parties who, unaware of it, have dealt with him and so prove it; but in such case the principal's right against the agent remains unimpaired.

The appointment of a new mandatary to take charge of the same matter or matters or business, without stating that the prior mandate remains in force, is equivalent to the revocation thereof.

The effects of the revocation commence from the day on which the appointment of the successor is notified to the prior mandatary.

By the revocation of the mandate made by the principal, the powers and the substitutions granted by the attorney-in-fact shall stand revoked, unless the grantor expressly confirms them.

This revocation must be notified to the substitutes in order to produce its effects.

Upon the death of the principal, the attorney-in-fact shall continue to exercise the mandate, but only for pending matters and while the legal representatives appear; and in no case for new business.

Whatever the agent has done after the death of the principal or after having been removed from office shall be valid if he acted in ignorance of those circumstances.

In case of death of the mandatary, his heirs or any person having an interest shall give notice to the mandator and, while the latter decides what is appropriate, they shall do whatever the circumstances require for the preservation of the property.

In the absence of the mandator, notice shall be given to the judge.

The obligation to render accounts to the principal passes to the heirs of the agent when the latter had administered property.

A general mandate that does not state a duration shall be deemed granted for ten years counted from the date of granting, except for an extension granted with the same formalities as the mandate.

The actions derived from the mandate that do not have a special term of limitation period last one year counted from the date on which the mandate ended.