The Contract of Mandate in the Egyptian Civil Code and the Civil Transactions Law

Mandate is among the nominate civil contracts whose provisions the civil codes govern — the Egyptian Civil Code and the Civil Transactions Law among them — and which Islamic law has likewise governed. It is among the contracts bearing upon work.

What a contract of mandate is

A contract of mandate is "a contract by which the principal puts the agent in his own place in a statutory disposition", under Article 480 of the Civil Transactions Law. It is in principle a consensual contract for whose conclusion the law requires no particular form. Where the mandate bears upon a formal disposition, however, it must take the same form. Article 700 of the Egyptian Civil Code provides that "a mandate must satisfy the form required for the legal act that is its object, unless a text provides otherwise".

Where a mandate bears upon an act such as mortgage or gift, it must be formal, given the nature of that contract. In gift, for instance, formality is required of the mandate, but this is confined to the donor's authorising another to make the gift; no particular form is required of the donee's acceptance. Where the law requires formality in certain contracts — gift, the official mortgage, and the sale of ships and aircraft — a mandate to conclude any of them must be in official form. Where the mandate is a private instrument endorsed with an attestation of the signatures upon it, it is absolutely void, the form of the disposition being a matter of public order. The court must so hold even of its own motion, and the effect of that nullity carries back to the principal disposition.

Article 699 of the Egyptian Civil Code defines a contract of mandate as "a contract by which the agent undertakes to perform a legal act on the principal's account". It appears from this text, expressly and as the explanatory memorandum makes clear, that the agent's obligation is expressly to perform a legal act. A mandate is therefore valid for sale, purchase, mortgaging and taking a mortgage, letting and hiring, and for all other contracts. It is likewise valid for making a bequest, for accepting one, for accepting a stipulation for the benefit of a third party, and for purging a mortgaged property, all of these being unilateral legal acts. A mandate is also permissible to make an admission, to administer an oath, and to plead before the courts, these being judicial procedures accessory to a legal act, namely the making of submissions before the court on the principal's behalf. It should be noted that where the performance of a legal act entails material acts, those acts are treated as attached and accessory to it. Where the object of the contract is a material act alone, it is a contract of employment and not a mandate: engaging a physician to perform a surgical operation is not a mandate.

The provision of Article 480 of the Civil Transactions Law, that a contract of mandate is one by which the principal puts the agent in his own place in a statutory disposition, may be understood to mean that the object of a mandate under that Law is statutory dispositions, as under the Egyptian Civil Code, which provides that the object of a mandate is legal acts. The Civil Transactions Law is distinguished, however, in expressly providing that the principal is put in the agent's own place by this contract. The agent must therefore act on his principal's account and in his name. The provisions on mandate in the Civil Transactions Law are confined to mandate in legal acts on behalf of another, and do not extend to acting on one's own account, as with the nominee and the commission agent.

The elements of a contract of mandate

The elements of mandate, as of all contracts, are consent, object and cause.

For a mandate to be concluded, offer and acceptance must concur upon its elements: principal and agent must agree upon the nature of the contract, the legal disposition the agent is to perform, and the remuneration he is to receive where there is any. All of this is subject to the general rules set out in the theory of contract, which apply to nominate and innominate contracts alike.

Agreement is required upon the nature of the contract and upon the legal disposition to be performed. The agent's acceptance of the mandate may validly be tacit, as with the tacit mandate of household servants, or the mandate of a wife to purchase household necessities. A third party dealing with the wife may accordingly have recourse against the husband, as principal in the disposition, and hold him to discharge the obligations arising from her dispositions, particularly the payment of the price of the purchases. It falls to the trial judge to decide whether a tacit mandate exists. The compass of that delegation is always fixed by the necessities of the household and the requirements of the family. Where the wife acts outside that compass — signing a bill of exchange on her husband's behalf, or conducting stock exchange operations — the act does not bind the husband, falling as it does outside the bounds of the tacit mandate.

The forms a mandate may validly take

A mandate may validly be:

1. absolute;
2. or restricted;
3. or suspended upon a condition;
4. or subject to a term;

under Article 481 of the Civil Transactions Law.

The kinds of mandate

One: the general mandate

This is a mandate expressed in general terms indicating no particular kind of legal act. The principal specifies neither the object of the legal disposition entrusted to the agent nor even the kind of disposition itself — as where the contract authorises the agent to conduct all the principal's affairs and whatever procedures and dispositions that requires. Such a mandate is not valid under the Civil Transactions Law: Article 482 provides that "a mandate expressed in general terms specifying no kind of statutory disposition as its object is not valid". This differs from the Egyptian Civil Code, which permits such a mandate in general terms but confines it to acts of administration alone, whether or not the general mandate refers to administration.

Article 701 of the Egyptian Civil Code provides that a mandate expressed in general terms, specifying not even the kind of legal act for which the mandate is given, confers upon the agent authority in acts of administration only, together with such procedures and dispositions as those require, on the footing that the parties' intention was directed to those acts alone. The effect is to confine such a mandate to legal acts producing neither enrichment nor impoverishment of the principal, save where that follows necessarily from acts of administration.

Under that article, acts of administration include letting for a term not exceeding three years, acts of preservation and maintenance, the collection of debts and the payment of debts. They also take in every act of disposition that administration requires, such as the sale of a crop, the sale of goods or of a movable liable to rapid deterioration, and the purchase of what the thing subject to the mandate requires by way of implements for its preservation and exploitation. These are given as the principal acts of administration, and are not exhaustive.

Two: the special mandate

This is a mandate determined by a particular legal act or acts — a mandate to sell, to buy, to compromise, to arbitrate, to let, or to sell a crop. A special mandate may bear upon an act of administration or an act of disposition, or upon both at once; what matters is that it be specific to a particular legal act or acts. It follows from the foregoing that acts of disposition are confined to the special mandate: one may not give another a general mandate covering all acts of disposition without specifying particular acts among them. Where particular acts are specified, the mandate is confined to what is specified and does not extend to other acts of disposition — as where a person authorises another to sell his property and to dispose of it by every kind of disposition, in which case the mandate covers sale alone.

The provisions on this mandate are laid down in Article 702 of the Egyptian Civil Code, which provides that a special mandate is required for every act that is not an act of administration, and particularly for sale, mortgage, gratuitous dispositions, compromise, admission, arbitration, the administering of an oath, and pleading before the courts. The same article provides that a special mandate for a particular kind of legal act is valid even where that act is not specifically identified, unless the act is a gratuitous disposition. The Civil Transactions Law complies with the same rule, providing that "a special mandate for a particular kind of statutory disposition is valid even where the object of that disposition is not specified, unless the disposition is a gratuitous one".

Article 484 of the Civil Transactions Law requires that "for every act that is not an act of administration, the mandate must be special, specifying the kind of act and the