Law applicable to the power of attorney and the content of the power of attorney
The article is the second of a three-part entry on the conclusion of real estate contracts by a client's attorney residing abroad.
The third part: Is the apostille clause really necessary?
In a previous post, we discussed the topic of the form in which a power of attorney should be granted if a party to the agreement is abroad and cannot be present at a notary in Poland.
Another issue to investigate is the law applicable to the power of attorney. In other words, does a Spanish notary draw up a power of attorney in accordance with Spanish or Polish law?
In this case, too, there are no bilateral agreements (conventions between two countries, in this case Poland and Spain) to regulate the law applicable to the power of attorney.
The "Rome I" regulation does not contain provisions that address this issue, nor do other regulations, including "Rome II" (which, by the way, deals with non-contractual obligations, i.e., compensation for damages, for example).
The answer should therefore be sought in Polish law.
According to Article 23 (1) sentence 1 of the Polish statute - Private International Law:
The power of attorney is governed by the law chosen by the principal.
As can be seen from the above provision, the choice of Polish law for the power of attorney can be made in the foreign notarial deed.
In turn, according to Article 23(2) of that law:
In the absence of a choice of law, the power of attorney is subject to sequentially:
- The law of the state of the representative's domicile, where he/she permanently acts, or
- yy the law of the country in which the principal's enterprise is located, if this is where the attorney permanently operates, or
- the law of the state in which the attorney actually acted, representing the principal, or in which, according to the principal's will, he should act.
As can be seen from the above provision, if no choice of law is made when drafting a power of attorney with a Spanish notary, but a power of attorney is granted to, for example, an attorney who is to conclude a contract in Poland, the power of attorney will still be governed by Polish law (as the law of the state of the attorney's domicile and in which the attorney will actually act).
It is therefore recommended that a power of attorney be drawn up in accordance with Polish law.
Content of the power of attorney
This power of attorney should have content that will be recognized by a Polish notary public.
For this purpose, and in the situation under analysis (described in the first entry: the client is in Spain), it is possible to request in advance from the Polish notary who will draft the agreement, a draft power of attorney to be drawn up before a Spanish notary, and have it translated into Spanish.
The Spanish notary will then draft the power of attorney anyway in the way he or she is familiar with (i.e., in accordance with Spanish law), but with the content most similar to the draft received in Spanish.
It is important that in the content of such a power of attorney:
- accurately identify the person of the attorney
- refer to previous contracts for the execution of which the power of attorney is granted (if they were drawn up in the form of notarial deeds, then also by stating the date, repertory number, name of the notary before whom the deed was executed)
- specify the essential elements of the contract to be entered into by the attorney (description of the property to be sold, including its land register number, price, agreed terms of sale).
The power of attorney can also authorize the attorney to conclude a contract on terms at the attorney's discretion, as well as to conclude annexes to previous contracts, and this will allow the contract to be concluded if changes need to be made before the conclusion of the promised contract (such as a change in price).
Author: Julia Armata
