Commentary to article 169. Transfer of the Civil Code of the Republic of Kazakhstan  

The general rule of the legal relationship on representation is the personal performance by the attorney of the actions for which he is authorized. This is due to the mutually trusting nature of the representation relationship between the principal and the attorney. The transfer of powers granted by a power of attorney to the attorney is possible only in two cases: 1) when the right to transfer powers of attorney is granted by the power of attorney itself (for example, when the principal issues a power of attorney with the right of transfer); 2) when the attorney is forced to delegate authority due to extraordinary circumstances that threaten the interests of the principal and prevent the attorney from agreeing on the transfer of trust with the principal (for example, the attorney's illness, which deprived him of the opportunity to personally execute an order requiring urgent execution on pain of otherwise damaging the interests of the principal, and the inability to immediately contact the principal to obtain consent to transfer of trust or making a different decision by the latter to protect and represent their interests).

Due to the exclusivity of cases of transfer of trust and in order to establish strong guarantees for the protection of the interests of the principal, this article establishes the need for notarization of the transfer agreement, even in cases where the main power of attorney itself does not require notarization. An exception to this rule is a power of attorney issued by proxy in accordance with paragraph 4 of art. 167 of the Civil Code.

Notarization of a transfer of trust also applies to a transfer of trust carried out by proxy on behalf of a legal entity, despite the fact that such a power of attorney is not notarized, but in another way (see comment to paragraph 6 of Article 167 of the Civil Code). Failure to comply with the notarization of the transfer of power of attorney entails its invalidity (see the commentary to art. 154 of the Civil Code).  

The legal relationship of trust is derived from the main legal relationship of representation. Therefore, a power of attorney transferring authority to another person should not contradict the content or may not exceed the validity period of the main power of attorney.

A power of attorney transferring authority to another person may also be issued with a narrower content, and then the original person remains the attorney for the powers not included in the power of attorney issued by way of transfer.  

A power of attorney transferring authority to another person may be issued for a shorter period, after which the former attorney re-enters into the representation relationship and the new attorney leaves.  

An attorney who has delegated authority to another person must immediately notify the principal and provide him with the necessary information about the new attorney and his place of residence, which should be understood as a description of the personal and professional qualities of the new representative that contribute to the performance of his duties. Such notification is necessary so that the principal knows about the new attorney, can assess his personal and professional qualities, cancel the transfer of trust or reject the candidacy of a new attorney, contact the new attorney and, when he considers it necessary or appropriate, cancel the transfer of trust or otherwise resolve the issue of representing his interests.

By timely notifying the principal of the transfer of trust and informing him of the necessary information about the new attorney and his place of residence, the attorney disclaims responsibility for the actions of the new attorney, being responsible only for the correctness of the choice of his replacement, that is, the correspondence of the business qualities of the new attorney to the nature of the assignment. Otherwise, the original attorney is responsible to the principal for the actions of the new attorney as his own.

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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.  

Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.

Deputy head Professor Basin Yu.G.