Mandate Between Spouses: Common Law and Specificities

Extract

[...] Thus, the mention in the business register would be necessary in determining the status of the spouse and in relations with third parties. It is in these conditions that the mandate between spouses is distinguished first and foremost by its imperative character. However, the mandate between spouses presents other derogations adapted to the marital regime. A mandate between spouses adapted to the marital regime This mandate can be established by authenticated deed or under private signature, although recourse to verbal mandate is rare due to the public order character of the legal division of powers between spouses (C. civ., art al. 1st). [...]

[...] In matters of disposition acts, the jurisprudence adopts a restrictive approach to the apparent mandate between spouses, rarely retained in the relationships between spouses and third parties (Cass. 1st civ March 2010, n° 08-19.649; Cass. 1st civ Nov n° 13-24.507, 13-25.682). Finally, as previously indicated, the mandate between spouses is freely revocable, in accordance with Article 218 of the Civil Code. Any contrary clause is prohibited, thus ensuring respect for the public order character of the provisions of the primary regime. Bibliography - D.Montoux, V° Procuration - Fasc : PROCURATION. - Mandats between spouses, JurisClasseur Notarial, 2023 - M. [...]

[...] In addition, the presumption of mandate between spouses automatically ceases in certain circumstances provided for by law. This includes the presumed absence of one of the spouses, judicial separation of property, or the disappearance of the legal conditions of the mandate. In these cases, the solution adopted cannot harm third parties, as these events are subject to a legal publicity that guarantees their knowledge by the concerned third parties. However, uncertainty may arise regarding the cessation of the presumption when a spouse effectively ceases their collaboration while remaining listed in the business register. [...]

[...] It is notably within this framework that the legislator and the judge have intervened in order to recognize a presumption of professional mandate and extend it to the mandate between spouses. An extended presumption of professional mandate to the mandate between spouses The presumption of professional mandate is derived from the common law of mandate. This presumption has been extended to the mandate between spouses and plays according to whether the spouses exercise a similar profession or not. In the case where spouses are married under the regime of separation of property, each of them retains the administration, enjoyment, and free disposal of their personal property. [...]

[...] Thus, the study of the mandate between spouses requires taking into account both the fundamental principles of the common mandate and the specificities of the marital regimes. The question also arises as to the extent to which the mandate between spouses differs from the common mandate. It will be a matter of first examining the close link between the mandate resulting from common law and the mandate between spouses, the latter being derived from the former in order to then study the derogatory regime of the mandate between spouses in relation to common law (II). [...]