POWER OF ATTORNEY – instrument in writing by which one
person, a principal, appoints another as his agent and confers upon
him the authority to perform certain specified acts or kinds of acts
on behalf of the principal.
SPECIAL POWERS OF ATTORNEY (SPA) – refers to the clear
mandate (express or implied) specifically authorizing the
performance of an act.
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ARTICLE 1878. Special powers of attorney are necessary in the following
cases: (PECWEM-LLB-BOCARO)
(1) To make such Payments as are not usually considered as acts of
administration;
- Payment is the delivery of money or the performance in any other manner of an
obligation. If payment is usually considered an act of administration, no special
power of attorney is needed. It should be noted however, that some acts of
administration carry with them the exercise of acts of dominion (the sale by an
administrator of fertile land or products of the land)
(2) To Effect novation which put an end to obligations already in existence at the
time the agency was constituted;
- Novation is the extinction of an obligation through the creation of a new one which
substitutes it by changing the object of the principal conditions thereof, substituting
a debtor or subrogating another in the right of the creditor
(3) To Compromise, to submit questions to Arbitration, to renounce the right to
Appeal from a judgment, to Waive objections to the venue of an action or to
Abandon a prescription already acquired; (CAAWA)
Compromise
contract whereby the parties by making reciprocal concessions avoid a
litigation or put an end to one already commenced.
Arbitration
where the parties submit their controversies to one or more arbitrators for a
decision.
Agent CANNOT waive the right to appeal from a judgment; objections to the
venue of an action; prescription already acquired by the principal
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(4) To Waive any obligation gratuitously;
This is condonation or remission. A debtor may have a debt or obligation to do in
favor of the principal. The agent cannot waive such credit gratuitously. Express
condonation shall comply with the forms of donation.
(5) To Enter into any contract by which the ownership of an immovable is
transmitted or acquired either gratuitously or for a valuable consideration;
The conveyance of an immovable for a valuable consideration or gratuitously is an
act of ownership, not an act of administration. Special Power of Attorney is needed
to validly effect conveyances.
Absence of written authority to sell a piece of land is ipso jure void.
(6) To Make gifts, except customary ones for charity or those made to employees
in the business managed by the agent;
GR: Gifts are donations, an act of liberality whereby a person disposes of a thing
or right in favor of another who accepts it is an act of ownership.
XPN: Gifts are customary for charity or given to employees in the business
managed by the agent.
(7) To Loan or borrow money, unless the latter act be urgent and indispensable
for the preservation of the things which are under administration;
What is involved here is only money. The agent may have in his possession funds
or money of his principal. An SPA is necessary to control this act as the principal
will be placed at a disadvantage if there is no limit to the discretion of the agent.
The same principle applies to the act of borrowing money.
(8) To Lease any real property to another person for more than one year;
Lease for more than one (1) year creates a real right.
If lease is not more than one (1) year, it is merely an act of administration provided
it is not registered.
(9) To Bind the principal to render some service without compensation;
While the agent may agree to render some service without compensation, he
cannot, without authority to bind his principal to do so, unless he has given a
special power to that effect. This will result to involuntary servitude.
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(10) To Bind the principal in a contract of partnership;
By the contract of partnership, the principal binds themselves to contribute money,
property, or industry to a common fund. The principal must have trust and
confidence in the proposed partnership.
(11) To Obligate the principal as a guarantor or surety;
Guaranty
Guarantor binds himself to the creditor to fulfill the obligation of the principal
debtor in case the latter should fail to do so.
Surety
Surety binds himself solidarily with the principal debtor. The creditor can make
the surety personally liable for the debt of the principal debtor.
(12) To Create or convey real rights over immovable property;
An agent cannot create real rights (usufruct, mortgage, voluntary easement) over
the immovable property.
(13) To Accept or repudiate an inheritance;
Any person having the free disposal of his property may accept or repudiate an
inheritance. This is an act of strict dominion.
(14) To Ratify or recognize obligations contracted before the agency;
An agent cannot effect novation of obligations existing at the time of the
constitution of the agency unless he be specifically authorized to do so. Also, the
agent cannot ratify or recognize obligations before the agency without an SPA
(15) Any other act of strict dominion. (n)
All acts of strict dominion not mentioned in the first cases.
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FORCIBLE ENTRY – action to recover possession founded upon
illegal possession FROM THE BEGINNING when one is deprived of
physical possession of real property by means of force, intimidation,
threat, strategy or stealth. Commenced by a verified complaint.
Requisites:
1. A person is deprived of possession of any land or
building
2. By force, intimidation, strategy, threat or stealth
(FISTS)
3. Action is brought within 1 year from the unlawful
deprivation.
UNLAWFUL DETAINER – one illegally withholds after the expiration
or termination of his right to hold possession under contract, express
or implied. Commenced by a verified complaint.
Requisites:
1. Possession of any land or building is unlawfully
withheld from a lessor, vendor, vendee, or other person
after the expiration or termination of the right to hold
possession by virtue of any contract express or implied;
2. Action is brought within 1 year after such unlawful
deprivation or withholding of possession
3. Demand to pay or comply with the conditions of the
lease and to vacate is made upon the lessee.
Who may institute the action
1. A person deprived of the possession of any land or building
by force, intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee; or
2. Other persons against whom the possession of any land or
building is unlawfully withheld after the expiration or termination of
the right to hold possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of any such lessor,
vendor, vendee, or other person. (Sec. 1, Rule 70)
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Lessor to proceed against lessee only after demand
Unless otherwise stipulated, such action by the lessor shall be
commenced only after demand to pay or comply with the conditions
of the lease and to vacate is made upon the lessee, or by serving
written notice of such demand upon the person found on the
premises if no person be found thereon, and the lessee fails to comply
therewith after 15 days in the case of land or 5 days in the case of
buildings. (Sec. 2, Rule 70)
When right to commence the action arises
The action shall commence if the lessee fails to comply with the
requisite demand after 15 days in case of land or 5 days in case of
buildings. (Sec. 2, Rule 70)
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