Under these quoted articles an agent or representative who wishes to enter into a contract on behalf of his principal, a contract which under the provisions of article 1218 (1184) must be executed in the form of a public instrument, and the agent or representative has no power of attorney executed in the form of a public instrument in order to do so and thus comply with the provisions of article 1218 (1184), may enter into the contract by means of a private instrument, which should include all the terms of the agreement, as well as a stipulation to execute a public instrument within a certain period of time. If the party with whom the agent or representative has contracted fails to fulfill any of the contractual obligations arising from the private instrument, the principal may bring an action to compel specific performance of the promise to reduce the agreement to the form of a public instrument. Such a step would be necessary in order to bring the contract within the formalities required by article 1218 (1184) of the Civil Code, and to permit the principal to make it the basis of an action for damages. If the third party should fail to comply with the judicial order directing him to execute the public instrument in question, the principal may then sue him on the private instrument for damages for breach of contract, as though the private instrument had been executed originally in the form of a public instrument.

AUTHENTICATION

By authentication is meant the legalization by an Argentine consul or other official of the Argentine Government in the foreign country authorized to do so of the signature of the notary public or other official in the foreign country authorized to acknowledge the signatures which may have been affixed by parties to a written instrument. In the case of a power of attorney drawn in the foreign country for use in Argentina, this is absolutely essential if the validity of such power of attorney is to be established in Argentina before parties concerned, courts, or other official bodies. Without such authentication a power of attorney drawn in a foreign country may never be protocolized with an Argentine escribano or notary public in the course of reducing such power of attorney to the form of a public instrument in the Argentine Republic.

In the United States authentication is perfected in the following manner: The signature of the local notary public or other competent official authorized by law to take acknowledgments must be certified. by that of the county clerk of the county of the notary, and the signature of the county clerk in turn must be certified by the Argentine consul for the district. If there is no Argentine consul for the district, the signature of the county clerk must be certified by the secretary of state of the State where the instrument is drawn. The signature of the secretary of state must then be certified by any Argentine consul in the State with powers so to do. If there is no Argentine consul in the particular State, then the signature of the secretary of state of the State must be certified by the Secretary of State of the United States, whose signature in turn must be certified by the Argentine Ambassador in Washington.

It follows that the procedure of authentication is concluded as soon as legalization by the Argentine consul or other Argentine

official authorized to perfect such legalization is reached. Usually in the larger commercial cities legalization of the signature of the notary public is comparatively easy, because as soon as the county clerk certifies the signature of the notary an Argentine consul is available to legalize the signature of the county clerk. In other smaller centers, where there is no Argentine consul, the above outlined procedure has to be followed in order to reach such legalization.

FORM

As a general rule, it may be stated that a power of attorney executed in the United States in accordance with the local laws, if duly legalized by the corresponding Argentine consul or other Argentine official authorized to do so, will be valid in Argentina by virtue of well-established legal principles springing from international comity. Two practical questions readily suggest themselves as being involved in this connection, namely, (1) the source of authority of the person executing the power of attorney in behalf of a corporation or a partnership, and (2) determination of the extent of the powers conferred by interpretation of its clauses.

EXECUTION BY PARTNERSHIP AND CORPORATION

In view of conflicting decisions which have been rendered by Argentine courts on the question as to whether or not it is essential that in the body of the power of attorney there should appear proof of the authority of the officer of the corporation executing the power of attorney in behalf of the corporation, or that of the member of a firm executing the power of attorney in behalf of a partnership, or that of an individual executing the power of attorney in behalf of another, it is advisable to observe the following rules:

In the case of a corporation granting a power of attorney to its agent or representative in the Argentine Republic, the practice should be followed of reciting in the body of the power all those facts establishing the right of the person granting the power in the name of the corporation to confer such powers, as, for instance, (1) the sections of the general corporation law of the State in which the corporation is organized relative to the powers of boards of directors; (2) the sections of the bylaws of the corporation relating to the powers of the board of directors; (3) the resolution of the board authorizing the president or other officer to execute the power of attorney in behalf of the corporation; (4) minutes of the annual stockholders' meeting showing the person granting the power of attorney was duly elected president or an officer of the corporation. The notary public before whom this power is executed should include a statement in the power of attorney itself to the effect that he saw the originals of the portions of the laws of the State, bylaws, minutes, or resolutions in question, and that the transcriptions made are correct and correspond exactly to the originals.

In the case of a partnership, unless all the members execute the instrument, the power of attorney should contain the partnership agreement or so much thereof as shows the date, place of organization, and domicile of the partnership, and most important, the clause or clauses which authorize any particular individual to execute in behalf of the partnership the power of attorney in question.

As in the case of a corporation, this power of attorney should include a statement by the notary public before whom it is executed to the effect that the transcriptions made are correct and correspond exactly to the originals.

In the case of an individual executing a power of attorney in this country in behalf of another for use in Argentina, the power of attorney itself should recite such authority and should contain a similar statement by the notary with regard to the correctness of the transcriptions made, as in the above two cases.

INTERPRETATION OF CLAUSES

A problem is presented when the various clauses of a power of attorney which has been drawn in a foreign country for use in Argentina come before the Argentine courts or other authorities for interpretation as to their extent. It is a problem which involves in many instances the question as to whether or not certain powers may be implied from other powers, a point on which the laws of the country of origin and those of Argentina may be at variance. If it should be decided that the laws of the country of origin apply to decide the point, considerable delay may be caused in proving the sufficiency of such clauses under its laws. If it should be decided that the laws of Argentina govern there is a possibility that according to Argentine laws the power of attorney may prove to be insufficient to accomplish the purposes for which it was drawn, in which case a new power of attorney would have to be executed, reciting specifically the powers, the implication of which from others was denied. To avoid difficulty in this connection powers of attorney drawn in a foreign country for use in Argentina should conform as much as possible to the provisions of Argentine law regulating the point under discussion. These provisions are found in the following articles of the Civil Code: 2

1913 (1879). A mandate is general or special. A general mandate comprises all the business of the principal, and a special mandate one or more specified transactions.

1914 (1880). A mandate drawn in general terms does not include more than acts of administration even though the principal may declare that he does not reserve any power to himself, and that the grantee of the mandate may do everything which he may deem necessary, or even though the power may contain the clause of general and free administration.

1915 (1881). Special powers of attorney are necessary:

(1) To make payments which are not the usual payments of administration. (2) To make novations which extinguish obligations already existing at the time of the mandate.

(3) To transact (compromise), to submit arbitration, to submit to other jurisdictions, to waive the right of appeal, or acquire prescriptions.

(4) To make any gratuitous waiver, or remission, or composition of debts, except in the event of the failure of the debtor.

(5) To contract marriage in the name of the principal.

(6) To acknowledge natural children.

(7) To execute any contract, the object of which is to convey or acquire the ownership of real property, under an onerous or gratuitous title.

(8) To make donations, other than presents of small sums, to the employees or persons in the service of the administration.

(9) To loan or borrow money, unless the business consists of lending and borrowing money at interest, or the loans are a consequence of the adminis

From Joannini, supra, revised by H. P. Crawford.

tration, or it be absolutely necessary to borrow money to preserve the things which are administered.

(10) To give in lease for more than 6 years the immovable property under his charge.

(11) To constitute the principal a depositary, unless the mandate consists of the receipt of deposits or consignments, or the deposit is a consequence of the administration.

(12) To obligate the principal to render some service as lessor, or gratuitously.

(13) To enter into a partnership.

(14) To constitute the principal a surety.

(15) To constitute or assign real rights in immovables.

(16) To accept inheritances.

(17) To acknowledge or confess obligations antedating the mandate.

1916 (1882). A special power of attorney to compromise does not include the power to submit to arbitration.

1917 (1883). A special power of attorney to make sales does not include the power to mortgage, nor to receive the price of the sale, when time for payment has been granted; nor does a power to mortgage include the power to sell.

1918 (1884). A special power of attorney for certain acts of a specified nature must be limited to the acts for which it is given and cannot be extended to include other similar acts, even though such acts could be considered as a natural consequence of those which the constituent ordered performed.

1919 (1885). A special power of attorney to mortgage the immovable property of the principal does not include the power to mortgage it for debts prior to the mandate.

1920 (1886). The power to contract an obligation includes the power to perform it, provided the principal has delivered to the mandatary the money or the thing which is to be given in payment.

1921 (1887). The power to sell the property of an inheritance does not include the power to assign it before having received it.

1922 (1888). A power to collect debts does not include the power to sue the debtors, nor to receive one thing in lieu of another, nor to make novations, remissions, or compositions.

Acts of an administration are all acts for which special powers are not required. The following are examples of administrative acts: Ordinary payments in the conduct of the grantor's business. The "novation" of obligations contracted in the course of the mandate.

Small payments to employees.

The lease of real property for a period not exceeding 6 years. The receipt of deposits or consignments in accordance with the provisions of the Commercial Code, provided that such transactions are in the usual course of the grantor's business.

The lending or borrowing of money, when this is a part of the grantor's business.

Actions to enforce the payment of debts.

The prosecution of possessory actions.

The interruption of prescriptions running against the property which the agent administers.

The purchase of materials with which to make necessary repairs; and, in general, the sale of the products of the concern which the agent represents. However, the right to sell the products of the establishment does not confer a power to dispose of the capital assets.

REVOCATION OF POWERS OF ATTORNEY

Ordinarily a power of attorney is revocable at the will of the grantor, except in those cases in which there is a bilateral agreement

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between the grantor and the attorney in fact, or grantee, fixing a period for its duration. The grantor in revoking a power of attorney should take steps in bringing notice of such revocation not only to the attorney in fact but as well to third persons in general, since otherwise such revocation will not be binding upon them. With respect to the attorney in fact, the grantor should notify him directly of the revocation, either personally or by mail, as soon as it has taken place, and if such revocation was effected through the execution of a written instrument a copy of such should be delivered to the attorney in fact. In order to bring notice of such revocation to third persons in general, it is advisable to register the revoking instrument in the registries where the power of attorney was originally registered. In Argentina these would be of commercial registry and the registry of mandates. The publication of the revocation in newspapers of the locality wherein the attorney in fact was acting is also advisable.

SUBSTITUTION

The provisions of the law of agency under which a substitution may be made by an attorney in fact have been discussed hereinbefore. It is sometimes advisable to include among the powers conferred upon the attorney in fact the power to appoint a substitute. This power may be general or specific, depending on the will of the grantor. In the case of corporations that have conferred general powers to their representatives operating in Argentina, it is well to define the cases in which they may appoint a substitute. In this way the question of substitution by having been made the subject of express provisions remains settled. If the original power of attorney was drawn in the form of a public instrument or was reduced to a public instrument in Argentina, the substitution must be made following the same procedure.

JUDICIAL MANDATE

A judicial mandate is the authority conferred by one party upon another to act before the courts or in other legal proceedings in behalf of the party granting such authority. Under Argentine law, the execution of a judicial mandate is necessary for the purposes of litigation. Such authority must be embodied in a power of attorney, which must be duly protocolized with an Argentine escribano before it may serve to accomplish the purposes for which it was executed. In general, powers of attorney conferred upon managers of branches of foreign corporations, it is sometimes advisable to include the power to solicit the services of lawyers and procuradores if they should be needed in connection with judicial proceedings affecting the interests of the grantor. By virtue of this power the particular manager or representative will be in a position to execute on behalf of the corporation the formal power of attorney required by law, conferring such authority upon the particular lawyer or procurador chosen. A procurador is a person who has qualified to exercise certain functions before the courts. This office is peculiar to Argentine law as well as to civil law in general.