When appointing a proxy in mode Article 210(1) KSH, which is a resolution of the Assembly of Associates, in practice, focuses most often on safeguarding the interests of a limited liability company, and indirectly also on protecting its creditors and shareholders. However, it is also worth looking at the other side of the medal, which is extremely important for the interests of proxy candidates.
It is particularly interesting to state on what terms and whether a person could respond as a proxy appointed by the meeting of shareholders to represent the company in dispute with a board member.
Legal language power of attorney
A popular power of attorney is called a document in fact confirming the power to act on behalf of someone, while in the legal language, the power of attorney (talking about its granting) is determined by a unilateral act (a testament of will) of the powerholder, which entitles the power of attorney to perform legal acts within the limits of the power, with direct effect for the represented person, that is to say, in such a way as if the powerholder of the act himself did.
From the point of view of the dispute with a member of the board of directors, and thus from a procedural perspective, it means empowering the proxy to take all the procedural steps involved and to make the necessary statements in both proceedings before the court. first, and second instances.
The mere fact that a power of attorney has been given to someone does not give the proxy the obligation to perform the activities for which it is authorised. This obligation may only arise from a separate relationship, so-called primary (internal).
Plenipotentiary appointed in mode Article 210(1) KSH could be liable under contractual liability for failure to perform or improper execution of an obligation if there was a basic relationship between the agent and the company (agreement or binding internal rules by acting on the company's boards), which would oblige the proxy to act diligently
The attorney may, but he doesn't have to
Acceptance of the power of attorney may, but need not, lead to the conclusion of an additional agreement constituting the basic relationship. Among the contracts that may constitute the basis ratio, we can mention the contract of order, contract of employment or contract of service.
However, the existence of a basic relationship should be clearly separated from the power of attorney itself (judgment of the Supreme Court) dated 21 March 2013 II CSK 458/12.
In the event that a member of the supervisory board is appointed as a proxy (for example, due to the inability of the whole supervisory board), the content of the basic relationship will result from an organisational relationship between the company and the member of the supervisory board.
Contractual liability is a matter of appropriate (basic) relationship
First, it should be indicated that if nothing else comes from the power of attorney, it does not give rise to any duties on the part of the proxy.
Plenipotentiary appointed in mode Article 210(1) KSH would also be contractually equivalent if he were employed by the company or would be bound by a company agreement or internal rules by acting on the company's boards, i.e. between a proxy appointed under the procedure Article 210(1) KSH and the company would have a basic relationship.
According to Article 471 KC the debtor is obliged to make good the damage resulting from default or breach of the obligation, unless the default or improper execution is due to circumstances for which the debtor is not liable.
According to the above article, a proxy would be obliged to make good the damage resulting from the failure or improper performance of the obligation resulting from the basic relationship (for example, failure to appear on the date of the trial without fault, failure to bring an appeal despite the court's instruction on the time limit).
The basis for such liability could be employment in the company or a specification in the resolution of which actions the proxy undertakes. However, it appears that In the second with the cases cited above, such power of attorney would form a contractual relationship, for which it would also be necessary to declare the candidate’s consent at the time of acceptance to perform the duties relating to the mandate.
The Plenipotentiary could avoid liability for non-execution or undue execution of the obligation if it were a consequence of circumstances for which the Plenipotentiary of Liability does not bear responsibility (returning the above example – failure to make an appeal within the time limit due to failure by the court to provide instructions on the time limit for bringing a complaint – remembering that we are not talking about professional, professional representatives) or if he accepted such responsibility.
Consequently, where the parties are not bound by additional provisions regarding the possible duties of the proxy and the proxy takes action, it can only be expected to seek to fulfil the will of the powerholder, or at least to act in accordance with his interest.
Plenipotentiary appointed in mode Article 210(1) KSH could therefore be liable under contractual responsibility for failing to perform or failing to perform an obligation if there was a basic relationship between the agent and the company (agreement or binding internal rules by acting in the company's bodies) which would oblige the proxy to act diligently.
If no appropriate (basic) relationship is adequate – a sensitive liability
According to Article 415 KC who did his fault second the damage must be rectified.
Where there is no basic relationship between the company and the proxy, however, it has acted contrary to the interests of the power of attorney for the damage caused may be liable within the framework of a pecuniary liability.
It is necessary for the power of attorney to demonstrate the total damage suffered, the fault of the proxy, the illegality of its conduct and the adequate causal link between conduct and damage.
In principle, it is considered illegal to behave contrary to a certain obligation laid down in the law of the common law (absolute law) or obligations under the contract (relative law).
If from a perspective Article 210(1) KSH has already been discussed the potential contractual liability resulting from a breach of obligations adopted under the agreement, and it is now possible to look at the possible liability resulting from a breach of the law that is commonly applicable.
As already mentioned, the power of attorney itself does not give rise to any duties on the part of the proxy. It is also appropriate to look for rules of law which are commonly applicable to the attorney to take action on the basis of the mandate given. Consequently, in cases where a proxy does not act on the basis of a power of attorney, nor does such an obligation provide for laws which are universally applicable – we cannot make such a proxy a charge that its conduct is unlawful.
On the other hand, one can imagine examples (although bright) in which the pecuniary responsibility of such an appointed proxy would nevertheless occur.
They include, among other things, a situation where the attorney does not take any action in the proceedings and the powerholders report the course of the trial as if it were actually properly conducted, informs about allegedly filed pleadings or time limits.
This kind of appearance of the conduct of a particular case, allegedly in accordance with the established mandate, involves that the attorney will be liable for the damage caused to the principal by his conduct.
Author: Michał Skwarek - Council applicant in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.