Pursuant to Article 1091 of the Civil Code, a power
of commercial representation (prokura) is a power
of attorney granted by an undertaking that is
subject to mandatory registration with the Register
of Entrepreneurs, which comprises an authorisation
to act in and out of court in matters associated
with running of the undertaking. A commercial
representative (prokutent), in his capacity as an
attorney-in-fact, submits his own declarations of
intent but acts on behalf and with legal effects for
the principal. This means that his acts produce
effects within the principal’s legal domain. The
acts performed by the commercial representative
impact the external relations between the principal
and third parties, without affecting the
undertaking’s internal domain.
The authorisation to act in court comprises
representation of the undertaking before common
and administrative courts, as well as any acts
performed in the course or related to legal
proceedings. The commercial representative is also
authorised to represent the principal before
competent authorities, as well as government and
local government administration.
The scope of commercial representation is specified
in detail under the statute and cannot be restricted
vis-à-vis third parties, with the exception of certain
statutory cases. In one of such cases, branch power
of
commercial
representation
(prokura
oddziałowa), laid down under Article 1095 of the
Civil Code, the commercial representative’s powers
are limited to matters listed in the register as
applicable to a branch of the undertaking.
Pursuant to Article 1096 of the Civil Code, while the
power of commercial representation cannot be
transferred by the commercial representative, but
he can appoint attorneys-in-fact to perform specific
acts or specific type of acts, and the principal is not
entitled to limit that right. However, the appointment of an attorney-in-fact may only extend
to the acts falling within the statutory scope of
commercial representation.
The purpose of the power of commercial
representation vehicle is to enable a commercial
representative to perform legal acts to ensure
effective running of the business and its day-to-day
development, and that is why the scope of a
commercial representative’s powers does not
include taking any actions to dissolve the
undertaking. The very fact of having been granted a
power of commercial representation does not
authorise the commercial representative to transfer
the undertaking, to perform any legal acts on the
strength of which the undertaking can be lent for
temporary use, or to transfer or encumber any real
property being part of the undertaking. A
commercial representative can perform these acts
only on the basis of a power of attorney granted to
perform them by the principal.
The statutory scope of powers of a commercial
representative is quite extensive, as it comprises
both a power of representation in the course of
court proceedings and a power to perform out-of-
court acts. A commercial representative may
perform both acts falling within the ordinary
management of the undertaking and those that
extend beyond it. However, any acts performed by
a commercial representative must be associated
with running of the principal’s undertaking.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary
of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in
individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant
legislation or other legal development to the particular facts can be verified.