Post by account_disabled on Mar 13, 2024 8:38:53 GMT
A power of attorney with general and unrestricted powers is not useful for the sale of unspecified property, as it does not meet the specialty requirement required by the Civil Code.
123RF
Power of attorney with general and unrestricted powers is not used for the sale of unspecified property 123RF
The understanding is that of the 3rd Panel of the Superior Court of Justice when declaring the nullity of the property purchase and sale deed as it understands that, although the transaction was made based on a power of attorney that granted broad, general and unrestricted powers, such document did not specify expressly the alienated asset.
"The granting of powers to dispose of all the grantor's assets does not meet the specialty requirement required by law, which provides for reference and determination of the assets specifically mentioned in the power of attorney", stated minister Nancy Andrighi, rapporteur of the appeal.
In the action that gave rise to the appeal, the B2B Lead owner of the property stated that he granted power of attorney to his brother so that he could take care of his assets while he lived in another state. He later learned that a property was sold, using a power of attorney, to a company in which his brother was a partner, and he himself — the owner — received nothing for the transaction.
The court ruled that the request for annulment of the deed was unfounded and imposed a fine for litigation in bad faith on the plaintiff. The Minas Gerais Court of Justice upheld the decision, but dismissed the fine.
In the special appeal, the author stated that the deal is null and void because it was based on a power of attorney granted 17 years earlier, without the delegation of express, special and specific powers for the sale of the property, the description of which would need to be included in the document.
Minister Nancy Andrighi, rapporteur of the appeal, considered that, according to article 661 of the Civil Code, the power of attorney in general terms only grants powers for the administration of the principal's assets.
She cited doctrine to reinforce the understanding that acts such as the one reported in the process — sale of a property — require the granting of special and express powers, including the specific description of the asset for which the power of attorney is intended.
"The expressed powers identify, in an explicit way (not implicit or tacit), exactly what power is conferred (for example, the power to sell). The powers will be special when they determine, particularize, individualize the businesses for which the grants (for example, the power to sell this or that property)" — explained the minister about the requirement set out in paragraph 1 of article 661 of CC/2002.