Refusal to accept a power of attorney : remarks on the basis of The Book I Civil Code

The background for the article on the power of attorney is an attempt of the Polish legislator to introduce an appropriate instrument for attorneys-in-fact to protect themselves, when they are against the extension of authority. Currently, pursuant to the prevailing view, an empowerment to represent on the basis of a power of attorney is based only on the unilateral declaration of the principal and the will of the attorney-in-fact is disregarded. Taking into account that the protection of individual autonomy is one of principles of private law, a regulation empowering the agents with the right to refuse the acceptance of empowerment becomes indispensable, in particular because the civil law relation of power of attorney carries obligations for the attorney-in-fact. The paper comprises a detailed analysis of the entire Article 144 of the draft Book I of the new Civil Code in the light of the previous doctrine and judicature concerning issues such as theoretical assumptions of representation, creation of empowerment under power of attorney by unilateral or bilateral juridical act. The author examines the means provided by the law for agents when they are not interested in acting on behalf of principal. Serious doubts arise as regards the right to decline empowerment, which refer in particular to its consequences. The analysis indicates that it is necessary to construe the right to decline as having a retroactive effect, in order to provide an appropriate legal protection for attorneys-in-fact during the period between receipt of a declaration of intent from the principal and his possible declaration to decline empowerment.