The purpose of the proxy contract is business, but its subject is human labor or activities. A non-action (avoidance) act or material acts of unfair action will prevent the creation of a proxy contract. Our Code of Obligations 386-398. among the articles regulate ordinary attorney. In the following articles, reputation letter, reputation order and brokerage (brokering), which are other types of power of attorney, are discussed.
For the proxy contract to be valid, it is necessary to comply with the law and morality as well as its subject is possible. The attorney contract is formed by the acceptance of the request by the other party. However, article 387 states the following; “In the event that the attorney has a formal title or is engaged in the profession or procures his services publicly, the attorney is deemed to be accepted if there is no immediate rejection.” In accordance with this provision, if professional groups such as lawyers, notaries and doctors do not immediately refuse the request directed to them, a proxy contract will be established. Upon the occurrence of the contract, the attorney is under the obligation to see the works or services given to him in accordance with the contract (art.386 / 1).
The scope of the proxy is primarily understood from the contract and the client’s instructions. If the power of attorney cannot be distinguished in this way, it is determined by the nature of the work it is related to. In this case, the attorney will be able to take into account the subject of the work, the nature of the work, the purpose to be achieved with the work, the characteristics of the event and the practices in this regard. The client has the opportunity to expand and narrow the power of attorney, the scope of which is determined by the instructions he will give later. The proxy contract also includes the mandate to perform mandatory legal proceedings for the performance of the committed work. However, for some important transactions, the proxy is required to have special authority.
Transactions requiring special authority are listed in the law. It is necessary to assign a special authority to the lawsuit for filing lawsuits, peace, arbitration, commitment of foreign exchange, forgiveness, real estate assignment, and right to real estate. Seeking special authority in special arrangements does not only serve the purpose of protecting the client but also affects third parties who are in legal relationship with the proxy. This counting process, which imposes a legal limitation on the scope of the proxy, should be considered as limited counting (limitation) and not as an example.
Deputy’s Debts and Responsibility
As stated in the Supreme Court decision (E: 2004/14912 K: 2005/715), the proxy contract is largely based on the mutual trust of the parties. Most of the deputy’s debts arise from this trust factor and require acting in accordance with the will and benefit of the deputy. Loyalty and care debt was accepted as the first debt of the attorney and it was included in the second paragraph of Article 390. Based on this, the proxy will be held liable in accordance with paragraph 1 of article 390 for transactions that are incompatible with the benefit of the client, as well as the obligation to avoid behaviors at the expense of the client. In addition, the responsibility will come to the agenda due to the damages given to the client with negligence and carelessness during the work and management of the work. The attorney will be responsible not for not achieving the result that he directed while doing business, but for not seeing the activities he carried out to reach the result with care.
The attorney’s care obligation disappears upon performance of the work. However, the loyalty obligation and the secret-keeping debt arising from this loyalty obligation continues after the end of the proxy. There is no provision in the Law of Obligations regarding the proxy’s secret storage debt. However, as a result of the mutual trust relationship, the attorney is obliged to keep the secrets of the client learned due to the execution of the attorney. In the event that the attorney harms his client with his contradictory behavior, his responsibility will arise as per m.398. The representative is also deemed to have undertaken the debt of informing, which is the requirement of the loyalty debt, and the debt to make recommendations regarding the performance of the business.
As a rule, the attorney has to do the work he / she has undertaken and cannot see this work to anyone else. This situation stems from the importance of the trust factor in the proxy. However, if the client allows the work to be done to someone else, or if it is obligatory according to the situation, or if customary and customary, the agent can perform the job by putting someone else in his place. The attorney may leave the performance of some jobs to the assistants. Responsibility for the actions of these assistants BK. It is subject to M. 100. The other way of substituting another person for the proxy is substitution proxy. In the substitute attorney, the attorney leaves the execution of the debts arising from the attorney with a contract on behalf of the client. Pursuant to paragraph 1 of Article 391, he / she is responsible for the acts of any person he substitutes outside of his / her authority. Paragraph 2 of the same article states that he will be held responsible for not paying the necessary care and attention to the person who chooses the person who placed the proxy and instructs him.
