A mandate is a contract by which one person designates another person to represent him or her, in other words act on his or her behalf, in legal dealings with a third party.
Mandator and mandatary
The person who grants the mandate is called the mandator, and the person who accepts the mandate is called the mandatary.
Mandate in writing
The mandate can be given orally, or in writing. However, in the event of a dispute, statements are easier to prove if they are backed up by a written document. A written mandate also reassures third parties that they are not dealing with an impostor, but with a genuine mandatary.
A mandate may consist of a private written document or a more complex document drawn up with the help of a legal adviser.
It must contain:
- the date on which it is drawn up,
- the name of the mandator,
- the name of the mandatary or mandataries,
- a description of the duties conferred on the mandatary, and
- the signature of the mandator.
No witnesses are needed and you are not required to register the document with a notary.
The mandatary does not need to be present when the document is drawn up, but he or she must have accepted the mandate. Acceptance is either express, in other words stated formally, or tacit, in which case it is not stated formally but can be deduced from the mandatary’s silence or from the actions he or she takes under the mandate.
A mandate may be special, in other words given for a single, specific purpose. In this case, it must be formally expressed. If you ask a friend to sell your car for you, a standard mandate form exists that has been prepared specifically for that purpose by the Société de l’assurance automobile du Québec.
A mandate may also be general. For example, you can ask a friend to manage all of your business, but if the mandate is expressed in broad terms and does not set out specific powers, the mandate is limited to simple administrative powers only and your friend will not be able, for instance, to sell your house or car without specific authorization.
The powers of the mandatary extend not only to what is specified in the mandate, but also to everything that is incidental to it. This means that you could mandate someone to sell your car, but if the transmission fails and the potential buyer insists that it be replaced, the mandatary could have the repairs made if doing so is necessary to secure the sale.