Offer is one of those new words that simply flooded the information space around us. However, its meaning is very simple: an offer is a proposal to conclude a legal contract made to one specific person or group of persons, or to anyone in general who may find it interesting.
Even without knowing its meaning, you constantly encounter it. For example, when buying a subway token, you enter into an offer agreement with the subway, and the rules that are posted at the stations are the legislative basis for the proposed offer.
The origin of the concept of "offer"
The main meaning of the concept under consideration is determined by its etymology (Latin origins of the word: offero - "offer", offertus - "offer"). It entered Russian legal and commercial discourses in the 19th century, but already from the French offrir meaning “to transfer, offer a price.”
In Italian, oferta also means "offer". Do you remember the film of the famous film director Giuseppe Tornatore (at our box office it was called "The Best Offer"), in whichA well-known collector receives an offer from a young woman to help her evaluate and sell her parents' antiques, and he accepts. This is an example of a typical offer.
Basic definitions
So, an offer is a proposal sent to a very specific person or organization, a group of people and anyone who may find it interesting, to conclude a legal contract. It can be done both verbally and in writing. Usually, in order to document everything, one party to the transaction sends a draft contract. The person making the offer is called the offeror (eng. offer - to offer), the person to whom it is sent - the acceptor (eng. accept - to accept).
If the offer is accepted, the acceptor is obliged to give an unconditional and complete answer. In a response letter, the other party must inform the offeror of its decision. It can be: acceptance of the offer (acceptance), refusal or amendments to the draft contract.
The result of accepting an offer is usually the conclusion of a contract or the direct issuance of an order. In case of refusal, the parties continue the correspondence until an agreement is reached. At the same time, if there is no prior agreement, you cannot express your consent in silence (Article 438 of the Civil Code of the Russian Federation). Schematically, the whole process can be represented as a certain offer cycle: offeror - offer - acceptor - acceptor - offeror.
Sometimes an acceptance can be considered not a formulated consent, but some action called in the language of casuistryconclusive, that is, an action confirming the tacit consent of a person to conclude a contract. The use of this option for confirming consent to a commercial or other offer is common on the Internet. For example, when a user, agreeing to accept the terms of an agreement drawn up by the site in the form of a public offer, simply checks the box where indicated.
The concept of "offer" in Russian law
All problems are regulated within the framework of the legislation (Article 435-449 of the Civil Code of the Russian Federation). The offer in Article 435 of the Civil Code of the Russian Federation is defined, firstly, as:
… an offer addressed to one or more specific persons, which is sufficiently specific and expresses the intention of the person who made the offer to consider himself to have entered into an agreement with the addressee who will accept the offer. The offer must contain the essential terms of the contract.
And second,
offer binds the person who sent it from the moment it is received by the addressee. If the notice of withdrawal of the offer was received earlier or simultaneously with the offer itself, the offer is considered not received.
How is an offer different from a contract?
As defined by law, an offer is not a full-fledged contract, it is a kind of declaration of intent, an invitation to cooperate with the aim of concluding a contract in the future. For example, you often receive a bunch of offers from your mailbox to take out a profitable loan, buy goods in the nearest supermarket on sale, connect a new Internet package indicating the price, speed and connection time. All thiscan be considered as examples of this type of offer if the conditions for the provision of these services are fixed in them. In this situation, you can decide: accept them, or throw the declarations in the trash.
Therefore, talking about an offer contract is wrong, since these are not identical legal constructions. However, the result should be a draft agreement agreed upon and ready for signing by both parties.
Thus, the main components of the offer (its features) are:
- presence of a clearly expressed will and desire of the offeror to conclude a contract;
- targeting in relation to one person or organization, group of persons or to everyone who responds to it (then the offer is called public);
- specificity and unambiguity of the information presented in it;
- meaningfulness in relation to significant terms of the contract.
What should be reflected in the draft treaty?
The legislation of the Russian Federation does not define the mandatory form of this document, therefore it is drawn up following the example of a standard agreement, usually accepted by the parties on a contractual basis. However, it should reflect full information about the essential terms of the offer, including:
- General provisions (including the regulations governing the relationship of the parties).
- Subjects of the offer (goods or services).
- Data on counterparties.
- Description of all product characteristics (consumer, technical, etc.); method of payment and delivery; cost fixing (unless otherwise provided).
- Procedure for the provision of services (if the subject of the offer is services).
- Financial component.
- Terms of the offer.
- Description of actions in case of force majeure.
- Dispute resolution process.
- Pen alties for violation of offer agreements.
- Details and signatures.
When all the conditions are agreed and signed by both parties, the contract is recognized as an offer, after which the offeror is obliged to fulfill his obligations, which are recorded in this document.
What is an offer invoice?
As a simplified version of such an agreement, an offer invoice can be used, which the offeror issues for payment to the other party.
If, say, a telecommunications company, as a provider, offers its services for broadcasting TV channels, then automatic acceptance can be the payment of an invoice for its services, bypassing signatures and seals. Thus, the fact of the beginning of the contract is recognized. As you can see, the offer agreement eliminates unnecessary formalities and simplifies the process of agreements. This is important if the contracting parties can only communicate remotely.
Types of offer:
Practically all types of offers are defined in the Civil Code of the Russian Federation. Their classification is shown in the table.
| Across the circle of addressees | Hard | Targeted offer sent to one specific client, in the future - to a potential buyer. At the same time, a mandatory requirement is to indicate the exact expiration datescontracts. |
| Free | The offer is made to several persons, usually buyers from the seller, in order to monitor the market for certain goods. | |
| Public | The range of addressees of the proposal is not defined, in fact, the conclusion of an agreement is allowed with any person who is interested in it. | |
| Recall if possible | Revocable |
The right to withdraw an offer is defined in Article 436 of the Civil Code of the Russian Federation:
|
| Irrevocable | ||
| According to the terms of consideration for making a decision (acceptance) | Valid for the period determined by the offer itself. | |
| Allowing acceptance within the terms specified by law (if the text of the offer itself does not indicate others). | ||
| Assuming that acceptance is possible for some necessary, but reasonable period (if the offer itself does not specify more precise terms or they are not in the relevant legislation). | ||
Public offer - what is it in simple words?
Today, a public offer has become very popular, especially on the Internet, due to the convenience of its design. Anyone using the Internet to sell their services or products, whether as an individualan entrepreneur or a company submits his offer, after which everyone can easily place an order online by filling out a certain form on the site, in fact, accepting the offer.
Basic principles of the public offer:
- The presence of a clearly expressed intention of the person who made the offer to conclude an offer contract.
- Mandatory fulfillment of the specified conditions by both parties to the transaction.
- Conclusion of a contractual agreement with any person who is interested in this offer.
So, what is a public offer in simple words - this is a type of contractual relationship that we constantly meet when we buy goods in stores, apply for loans, use coffee or beer vending machines, download paid videos on the Internet, look at the menu in a cafe and ordering food. Tutors, fitness trainers, lawyers offering their services at the same time indicating their cost, labor exchanges - all this is an offer.
In international practice, a public offer is known as a defensive offer, as it targets users who may be interested in the goods and services offered for sale, and therefore is a useful source of information when dividing the market by multinational companies.
It is important to note that according to the legislation of the Russian Federation, the seller does not have the right to adjust the agreement, even if it turns out to be unprofitable for him in the end.
Is advertising an offer?
Usually public advertisingdoes not count as an offer. Often there is a special warning about this in advertising booklets. Indeed, advertising almost never specifies the specific terms of possible future contracts.
However, according to Art. 394 of the Civil Code of the Russian Federation, in certain cases, advertising is equated to a public offer:
1. The offer of goods in its advertising, catalogs and descriptions of goods addressed to an indefinite circle of persons is recognized as a public offer (paragraph 2 of Article 437) if it contains all the essential terms of the retail sale contract.
2. The display of goods at the point of sale (on shelves, in showcases, etc.), the demonstration of their samples or the provision of information about the goods sold (descriptions, catalogs, photographs of goods, etc.) at the point of sale is recognized as a public offer, regardless of whether the price is indicated and other essential terms of the retail sale agreement, unless the seller has expressly determined that the goods in question are not for sale.
Advertisers really don't like this, because the agreement of the offer imposes obligations on the offeror to fulfill it, and they try to avoid this, so that later they would not have claims from the law for unfair advertising.
Does the offer have an expiration date?
According to Article 11 of the Federal Law "On Advertising":
If, in accordance with the Civil Code of the Russian Federation, advertising is recognized as an offer, such an offer is valid for two months from the date ofdistribution of advertising, provided that it does not specify a different period.
Therefore, if the validity period of the offer is not specified in the text of the document, then by law this offer is valid for two months after it is received by the acceptor.
The legislation of the Russian Federation also regulates the duration of the process of concluding an agreement. At the same time, it is taken into account whether the acceptance period is indicated in the proposed text. There may be the following situations:
- The deadline for confirming your consent (acceptance) is specified directly in the offer (Article 440 of the Civil Code of the Russian Federation). Then, if the contract is received by the offeror no later than this period, it will be considered concluded.
- When the deadline for acceptance is not set in a written offer (Article 441 of the Civil Code of the Russian Federation). In this case, the contract is considered concluded either within the time limits established by law, or for the time that is usually recognized as necessary for this.
- If an offer is offered orally, then the law provides for immediate acceptance.
What are the conditions for terminating the offer?
The break of a public offer occurs when the offeror tries to change the parameters of an already concluded contract without notifying the acceptor. According to the law, such changes are a violation of the offer, leading, legally speaking, to its nullity. Therefore, the person who accepted the offer has reason to seek the return of the previous conditions or withdraw the acceptance. If the contract is executed in writing, then the regulation of this process is carried out within the boundaries of the legalstate fields.
If, say, the price of the goods in the invoice you paid and the price indicated in the price tag of the store differ, then there is a case of violation of the public offer, regulated by the retail rules established for the public offer by the laws of the Russian Federation (Article 494 of the Civil Code of the Russian Federation).
