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القانونى المدنى لولاية كيبيك بكندا

الصادر فى 18 ديسمبر 1991 والمعمول به ابتداء من 1 يناير 1994

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Le mandat d′incapacité du Québec

CHAPTER IX 

MANDATE

DIVISION I

NATURE AND SCOPE OF MANDATE

2130. Mandate is a contract by which a person, the mandator, empowers another person, the mandatary, to represent him in the performance of a juridical act with a third person, and the mandatary, by his acceptance, binds himself to exercise the power. The power and, where applicable, the writing evidencing it are called the power of attorney.

2131. The object of the mandate may also be the performance of acts intended to ensure the personal protection of the mandator, the administration, in whole or in part, of his patrimony as well as his moral and material well-being, should he become incapable of taking care of himself or administering his property.

2132. Acceptance of a mandate may be express or tacit. Tacit acceptance may be inferred from the acts and even from the silence of the mandatary.

2133. Mandate is either by gratuitous title or by onerous title. A mandate entered into between two natural persons is presumed to be by gratuitous title but a professional mandate is presumed to be given by onerous title.

2134. Remuneration, if any, is determined by the contract, usage or law or on the basis of the value of the services rendered.

2135. A mandate may be special, namely for a particular business, or general, namely for all the business of the mandator. A mandate expressed in general terms confers the power to perform acts of simple administration only. The power to perform other acts is conferred only by express mandate, except where, in the case of a mandate given in anticipation of the mandator's incapacity, that mandate confers full administration.

2136. The powers of a mandatary extend not only to what is expressed in the mandate, but also to anything that may be inferred therefrom. The mandatary may carry out all acts which are incidental to such powers and which are necessary for the performance of the mandate.

2137. Powers granted to persons to perform an act which is an ordinary part of their profession or calling or which may be inferred from the nature of such profession or calling, need not be mentioned expressly.

DIVISION II 

OBLIGATIONS BETWEEN PARTIES

§ 1. —  Obligations of the mandatary towards the mandator

2138. A mandatary is bound to fulfill the mandate he has accepted, and he shall act with prudence and diligence in performing it. He shall also act honestly and faithfully in the best interests of the mandator, and avoid placing himself in a position that puts his own interest in conflict with that of his mandator.

2139. During the mandate, the mandatary is bound to inform the mandator, at his request or where circumstances warrant it, of the stage reached in the performance of the mandate. The mandatary shall inform the mandator without delay that he has fulfilled his mandate.

2140. The mandatary is bound to fulfill the mandate in person unless he is authorized by the mandator to appoint another person to perform all or part of it in his place. If the interests of the mandator so require, however, the mandatary shall appoint a third person to replace him where unforeseen circumstances prevent him from fulfilling the mandate and he is unable to inform the mandator thereof in due time.

2141. The mandatary is accountable for the acts of the person he has appointed without authorization as his substitute as if he had performed them in person; where he was authorized to make such an appointment, he is accountable only for the care with which he selected his substitute and gave him instructions. In any case, the mandator has a direct action against the person appointed by the mandatary as his substitute.

2142. In the performance of the mandate, the mandatary, unless prohibited by the mandator or usage, may require the assistance of another person and delegate powers to him for that purpose. The mandatary remains liable towards the mandator for the acts of the person assisting him.

2143. A mandatary who agrees to represent, in the same act, persons whose interests conflict or could conflict shall so inform each of the mandators, unless he is exempted by usage or the fact that each of the mandators is aware of the double mandate; he shall act impartially towards each of them. Where a mandator was not in a position to know of the double mandate, he may have the act of the mandatary declared null if he suffers injury as a result.

2144. Where several mandataries are appointed in respect of the same business, the mandate has effect only if it is accepted by all of them. The mandataries shall act jointly for all acts contemplated in the mandate, unless otherwise stipulated or implied by the mandate. They are solidarily liable for the performance of their obligations.

2145. A mandatary who exercises alone powers that his mandate requires him to exercise with another person exceeds his powers, unless he exercises them more advantageously for the mandator than agreed.

2146. The mandatary may not use for his benefit any information he obtains or any property he is charged with receiving or administering in carrying out his mandate, unless the mandator consents to such use or such use arises from the law or the mandate. If the mandatary uses the property or information without authorization, he shall, in addition to the compensation for which he may be liable for injury suffered, compensate the mandator by paying, in the case of information, an amount equal to the enrichment he obtains or, in the case of property, an appropriate rent or the interest on the sums used.

2147. The mandatary may not, even through an intermediary, become a party to an act which he has agreed to perform for his mandator, unless the mandator authorizes it or is aware of his quality as a contracting party. Only the mandator may avail himself of the nullity resulting from the violation of this rule.

2148. Where the mandate is by gratuitous title, the court may, after assessing the extent of the mandatary's liability, reduce the amount of damages for which he is liable.

§ 2. —  Obligations of the mandator towards the mandatary

2149. The mandator is bound to cooperate with the mandatary to facilitate the fulfilment of the mandate.

2150. Where required, the mandator advances to the mandatary the necessary sums for the performance of the mandate. He reimburses the mandatary for any reasonable expenses he has incurred and pays him the remuneration to which he is entitled.

2151. The mandator owes interest on expenses incurred by the mandatary in the performance of his mandate from the day they are disbursed.

2152. The mandator is bound to discharge the mandatary from the obligations he has contracted towards third persons within the limits of the mandate. The mandator is not liable to the mandatary for any act which exceeds the limits of the mandate. He is fully liable, however, if he ratifies such act or if the mandatary, at the time he acted, was unaware that the mandate had terminated.

2153. The mandator is presumed to have ratified an act which exceeds the limits of the mandate where the act has been performed more advantageously for him than he had indicated.

2154. Where the mandatary is not at fault, the mandator is bound to compensate him for any injury he has suffered by reason of the performance of the mandate.

2155. If no fault is imputable to the mandatary, the sums owed to him are payable even though the business has not been successfully concluded.

2156. If a mandate is given by several persons, their obligations towards the mandatary are solidary.

DIVISION III 

OBLIGATIONS OF PARTIES TOWARDS THIRD PERSONS

§ 1. —  Obligations of the mandatary towards third persons

2157. Where a mandatary binds himself, within the limits of his mandate, in the name and on behalf of the mandator, he is not personally liable to the third person with whom he contracts. The mandatary is liable to the third person if he acts in his own name, subject to any rights the third person may have against the mandator.

2158. Where a mandatary exceeds his powers, he is personally liable to the third person with whom he contracts, unless the third person was sufficiently aware of the mandate, or unless the mandator has ratified the acts performed by the mandatary.

2159. Where the mandatary agrees with a third person to disclose the identity of his mandator within a fixed period and fails to do so, he is personally liable. The mandatary is also personally liable if he is bound to conceal the name of the mandator or if he knows that the person whose identity he discloses is insolvent, is a minor or is under protective supervision and he fails to mention this fact.

§ 2. —  Obligations of the mandator towards third persons

2160. A mandator is liable to third persons for the acts performed by the mandatary in the performance and within the limits of his mandate unless, under the agreement or by virtue of usage, the mandatary alone is liable. The mandator is also liable for any acts which exceed the limits of the mandate, if he has ratified them.

2161. The mandator may repudiate the acts of the person appointed by the mandatary as his substitute if he suffers any injury thereby, where the appointment was made without his authorization or where his interest or the circumstances did not warrant the appointment.

2162. The mandator or, upon his death, his heirs are liable to third persons for acts done by the mandatary in the performance and within the limits of the mandate after the termination of the mandate, where the acts were the necessary consequence of those already performed or could not be deferred without risk of loss, or where the third person was unaware of the termination of the mandate.

2163. A person who has allowed it to be believed that a person was his mandatary is liable, as if he were his mandatary, to the third person who has contracted in good faith with the latter, unless, in circumstances in which the error was foreseeable, he has taken appropriate measures to prevent it.

2164. A mandator is liable for any injury caused by the fault of the mandatary in the performance of his mandate unless he proves, where the mandatary was not his servant, that he could not have prevented the injury.

2165. A mandator, after disclosing to a third person the mandate he had given, may take action directly against the third person for the performance of the obligations he contracted towards the mandatary, who was acting in his own name. However, the third person may plead the inconsistency of the mandate with the stipulations or nature of his contract and the defenses which can be set up against the mandator and the mandatary, respectively. If proceedings have already been instituted against the third person by the mandatary, the mandator may exercise his right only by intervening in the proceedings.

DIVISION IV 

SPECIAL RULES GOVERNING THE MANDATE GIVEN IN ANTICIPATION OF THE MANDATOR'S INCAPACITY

2166. A mandate given by a person of full age in anticipation of his incapacity to take care of himself or to administer his property is made by a notarial act en minute or in the presence of witnesses. The performance of the mandate is subordinate to the occurrence of the incapacity and to homologation by the court, at the request of the mandatary designated in the act.

2167. A mandate given in the presence of witnesses is written by the mandator or by a third person. The mandator, in the presence of two witnesses who have no interest in the act and who are in a position to ascertain whether he is capable of acting, declares the nature of the act but need not disclose its contents. The mandator signs the act at the end or, if he has already signed it, recognizes his signature; he may also have a third person sign the writing for him in his presence and according to his instructions. The witnesses sign the mandate forthwith in the presence of the mandator.

2167.1. During homologation proceedings or even before if a request for homologation is imminent and it is necessary to act to prevent serious harm to the mandator, the court may issue any order it considers necessary to ensure the personal protection of the mandator, his representation in the exercise of civil rights or the administration of his property. An act under which the mandator has entrusted the administration of his property to another person continues to produce its effects notwithstanding the proceedings, unless the act is revoked by the court for a serious reason.

2168. Where the scope of the mandate is in doubt, the mandatary interprets it according to the rules respecting tutorship to persons of full age. If any notice, consent or authorization is then required pursuant to the rules respecting the administration of the property of others, the mandatary may obtain it from the Public Curator or from the court.

2169. Where the mandate is not such as to fully ensure the care of the person or the administration of his property, protective supervision may be instituted to complete it; the mandatary then proceeds to carry out the mandate and makes a report, on application and at least once each year, to the tutor or curator. At the end of the mandate, he renders an account to the tutor or curator. The mandatary is bound by such obligations only with respect to the tutor or curator to the person. If the protection of the person is assumed by the mandatary himself, the tutor or curator to property is bound by the same obligations towards the mandatary.

2170. Acts performed before the homologation of the mandate may be annulled or the resulting obligations may be reduced, on the mere proof that the mandator's incapacity was notorious or known to the other party at the time that the acts were entered into.

2171. Unless otherwise stipulated in the mandate, the mandatary is authorized to perform, to his benefit, the obligations of the mandator provided in articles 2150 to 2152 and 2154.

2172. The mandate ceases to have effect when the court ascertains that the mandator has again become capable; the mandator may then revoke his mandate if he considers it appropriate to do so.

2173. If the director general of the health and social services establishment which provides care or services to the mandator ascertains that the mandator has again become capable, he shall attest to such capacity in a report filed in the office of the court. Such a report includes the medical and psychosocial assessment. The clerk informs the mandatary, the mandator and the persons qualified to intervene in an application for the institution of protective supervision that the report has been filed. If no objection is made within 30 days, the court is presumed to have found that the mandator has again become capable, and the clerk shall, without delay, transmit a notice of cessation of the effects of the mandate to the mandator, the mandatary and the Public Curator.

2174. The mandatary may not, notwithstanding any provision to the contrary, renounce his mandate unless he has previously provided for his replacement if the mandate provides therefor or has applied for the institution of protective supervision in respect of the mandator.

DIVISION V 

TERMINATION OF MANDATE

2175. In addition to the causes of extinction common to obligations, revocation of the mandate by the mandator, renunciation by the mandatary, the extinction of the power conferred on the mandatary or the death of one of the parties terminates the mandate. The mandate is also terminated by bankruptcy, except where it was given by gratuitous title in anticipation of the mandator's incapacity; it may be terminated as well, in certain cases, by the institution of protective supervision in respect of one of the parties.

2176. The mandator may revoke the mandate and compel the mandatary to return to him the power of attorney in order to make a notation therein of the termination of the mandate. The mandatary has a right to require the mandator to furnish him with a duplicate of the power of attorney containing such notation. Where the power of attorney is made by notarial act en minute, the mandator makes the notation on a copy and may give notice of termination of the mandate to the depositary of the document, who, on being notified, is bound to note it on the document and on every copy of it which he issues.

2177. Where the mandator is incapable, any interested person, including the Public Curator, may, if the mandate is not faithfully performed or for any other serious reason, apply to the court for the revocation of the mandate, the rendering of an account by the mandatary and the institution of protective supervision in respect of the mandator.

2178. A mandatary may renounce the mandate he has accepted by so notifying the mandator. He is thereupon entitled, if the mandate was given by onerous title, to the remuneration he has earned until the day of his renunciation. The mandatary is liable for injury caused to the mandator by his renunciation, if he submits it without a serious reason and at an inopportune moment.

2179. The mandator may, for a determinate term or to ensure the performance of a special obligation, renounce his right to revoke the mandate unilaterally. The mandatary may, in the same manner, undertake not to exercise his right of renunciation. Unilateral revocation or renunciation by the mandator or the mandatary, as the case may be, despite his undertaking terminates the mandate.

2180. The appointment of a new mandatary by the mandator for the same business is equivalent to revocation of the first mandatary from the day the first mandatary was notified of the new appointment.

2181. A mandator who revokes a mandate remains bound to perform his obligations towards the mandatary; he is also liable for any injury caused to the mandatary as a result of a revocation made without a serious reason and at an inopportune moment. Where notice of the revocation has been given only to the mandatary, the revocation does not affect a third person who deals with him while unaware of the revocation, without prejudice, however, to the remedy of the mandator against the mandatary.

2182. Upon termination of the mandate, the mandatary is bound to do everything which is a necessary consequence of his acts or which cannot be deferred without risk of loss.

2183. Upon the death of the mandatary or his being placed under protective supervision, the liquidator, tutor or curator, if aware of the mandate and able to act, is bound to notify the mandator of the death and, in respect of any business already begun, to do everything which cannot be deferred without risk of loss. In the case of a mandate given in anticipation of the mandator's incapacity, the liquidator of the mandatary is bound, in the same circumstances, to give notice of the mandatary's death to the Public Curator.

2184. Upon termination of the mandate, the mandatary is bound to render an account and return to the mandator everything he has received in the performance of his duties, even if what he has received was not due to the mandator. The mandatary owes interest, computed from the time he is in default, on any balance in the account consisting of sums he has received.

2185. A mandatary is entitled to deduct what the mandator owes him by reason of the mandate from the sums he is required to remit. The mandatary may also retain what was entrusted to him by the mandator for the performance of the mandate until payment of the sums due to him.