THE LEGAL NATURE OF A POWER OF ATTORNEY AS A UNILATERAL TRANSACTION IN THE CIVIL LAW OF UKRAINE

Abstract

This article is devoted to a comprehensive study of the legal nature of a power of attorney (PoA) as a unilateral legal transaction within the system of civil law of Ukraine. The PoA is traditionally viewed as a key instrument for confirming the powers of the representative; however, a long-standing discussion persists in theory and practice regarding its substantive and legal nature. The analysis focuses on the correlation between the power of attorney and the mandate agreement (agency contract), the issues of their interconnection and autonomy, as well as the problem of whether a PoA can exist without a prior agreement on representation.Various doctrinal approaches are explored: the concept of the PoA as a unilateral transaction that creates only the right of the representative; and the position according to which the PoA is inseparably linked to a prior agreement between the parties and only fixes the scope of the agreed-upon powers. Significant attention is focused on the analysis of contemporary decisions of the Supreme Court, which consistently shifts away from a formal understanding of the PoA and recognizes it as confirmation of the of a mandate agreement conclusion.The essential terms of the PoA, requirements for its form, notarization, and the determination of the representative’s legal actions are investigated, as is the issue of nullity due to the absence of a date. The problem of the moment of execution of the PoA and its legal consequences is considered separately. The necessity of a comprehensive approach is substantiated, one that takes into account both the documentary form and the actual communication of the principal’s will to the addressee. It is concluded that voluntary representation has a fiduciary nature and that it is advisable to interpret the power of attorney not as an isolated expression of will, but as an element of obligatory relations aimed at realizing the interests of the principal.