The offer is one of those new words that simply flooded the information space surrounding 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 people, or to anyone who may find it interesting in general.
Without even knowing its meaning, you are constantly confronted with it. For example, when buying a metro token, you conclude an offer with the subway, and the rules that are posted at the stations are the legislative basis of the proposed proposal.
The origin of the concept of "offer"
The main meaning of the concept under consideration is determined by its etymology (Latin sources of the word: offero - “offer”, offertus - “offer”). It entered Russian legal and commercial discourses in the 19th century, but already from the French offrir in the meaning of “transmit, bid”.
In Italian, the word oferta also means "sentence." Remember the film by the famous film director Giuseppe Tornatore (in our box office it was called “The Best Offer”), in which the famous collector receives an offer from a young woman to help her in the evaluation and sale of antiques of his parents, and he accepts it. This is an example of a typical offer.
Key Definitions
So, an offer is a certain offer directed to a very specific person or organization, a group of persons and anyone who may find it interesting to conclude a legal contract. It is permissible to do it both verbally and in writing. Usually, in order to document everything, one party to the transaction sends a draft contract. The person making the proposal is called the provider (English to offer), the person to whom it is sent is the acceptor (English to accept).
If the offer is accepted, the acceptor must give an unconditional and complete answer. In the response letter, the second party must inform the provider of its decision. It may be: acceptance of the proposal (acceptance), refusal or amendment of the draft contract.
The result of the acceptance of the proposal is usually the conclusion of a contract or direct issuance of an order. In case of refusal, the parties continue the correspondence until an agreement is reached. Moreover, if there is no preliminary 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: offer - offer - acceptor - acceptance - offer.
Sometimes acceptance may not be considered a formulated consent, but some action called in the casuistry language as a concurrent action, that is, an action confirming the tacit consent of a person to conclude an agreement. Using this option to confirm consent to a commercial or other offer is common on the Internet. For example, when the user, agreeing to accept the terms of the contract drawn up by the site in the form of a public offer, simply puts a checkmark where indicated.
The concept of “offer” in Russian law
All problems are regulated by law (Articles 435-449 of the Civil Code of the Russian Federation). The offer in Article 435 of the Civil Code of the Russian Federation is determined, firstly, as:
… an offer addressed to one or several specific persons, which is quite definite and expresses the intention of the person who made the proposal, to consider himself having concluded a contract with the addressee who will accept the proposal. The offer must contain the essential terms of the contract.
And secondly,
the offer binds the person who sent it from the moment it was received by the addressee. If the notice of withdrawal of the offer was received earlier or at the same time as the offer itself, the offer shall be considered not received.
How is the offer different from the contract?
As defined by law, an offer is not a full-fledged agreement, it is a kind of declaration of intent, an invitation to cooperate with the aim of concluding an agreement in the future. For example, you often take out a bunch of offers from a mailbox to take a profitable loan, buy goods at a nearby supermarket for sale, connect a new Internet package with an indication of price, speed and terms of connection. All this can be considered as examples of this type of proposals, if they fix the conditions for the provision of these services. In this situation, you can decide: accept them, or throw the declarations into the basket.
Therefore, talking about an offer contract is wrong, as 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:
- the presence of a clearly expressed will and desire of the provider to conclude a contract;
- targeting in relation to one person or organization, a group of persons or to everyone who responds to it (then the offer is called public);
- concreteness and unambiguity of the information presented in it;
- informativeness regarding significant terms of the contract.
What should be reflected in the draft agreement?
The legislation of the Russian Federation does not define the mandatory form of this document, therefore it is compiled according to the example of a standard agreement, usually adopted by the parties on a contractual basis. However, it should reflect the full information about the essential conditions of the offer, including:
- General provisions (including regulatory acts that govern the relations of the parties).
- Items of the offer (goods or services).
- Counterparty data.
- Description of all product characteristics (consumer, technical, etc.); method of payment and delivery; fixing the cost (in case, unless otherwise provided).
- The procedure for the provision of services (if the subject of the offer is services).
- The financial component.
- Validity of the offer.
- Description of actions in force majeure situations.
- Settlement of disputes.
- Penalties for violation of offer agreements.
- Details and signatures.
When all conditions have been agreed and signed by both parties, the contract is recognized as an offer, after which the provider is obliged to fulfill its obligations, which are recorded in this document.
What is an invoice?
A simplified version of such an agreement may be an invoice, which the provider issues for payment to the other party.
If, for example, a telecommunications company, as an provider, offers its services for broadcasting television channels, then an automatic acceptance may 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 agreement process. This is important if the contracting parties can only communicate remotely.
Types of offer:
Almost all types of offers are defined in the Civil Code of the Russian Federation. Their classification is given in the table.
| In the circle of recipients | Solid |
A focused offer sent to one specific client, in the future - to a potential buyer. In this case, a mandatory requirement is to indicate the exact duration of the contract. |
| Loose | The offer is made to several persons, usually buyers from the seller, in order to monitor the market for certain products. | |
| Public |
The circle of addressees of the proposal is not defined, in fact, the conclusion of the contract is allowed with any person who is interested in them. |
|
| If possible recall | Revocable |
The right to withdraw an offer is defined in Article 436 of the SCRF:
|
| Irrevocable | ||
| By the terms of consideration for making a decision (acceptance) |
Valid for the period determined by the offer itself. |
|
| Allowing acceptance within the time limits specified by law (if the text of the proposal 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 dates or if 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 goods, whether an individual entrepreneur or a company, puts up their offer, after which everyone can easily place an order online by filling out a specific form on the site, in fact, accepting the offer.
The main principles of the public offer:
- The presence of the clearly expressed intention of the person making the proposal to conclude an offer agreement.
- Mandatory fulfillment of the specified conditions by both parties to the transaction.
- The conclusion of a contractual agreement with any person who is interested in this proposal.
So, what is a public offer in simple words - this is the type of contractual relationship that we encounter all the time when we buy goods in stores, arrange loans using coffee or beer vending machines, download paid videos on the Internet, look at the menu in the cafe and order dishes. Tutors, fitness trainers, lawyers offering their services, while indicating their cost, labor exchanges - all this is an offer.
In international practice, a public offer is known as protective, because it focuses on users who may be interested in goods and services offered for sale, and therefore is a useful source of information in the division of the market by multinational companies.
It is important to consider that according to the legislation of the Russian Federation, the seller does not have the right to adjust the agreement, even if it is ultimately unprofitable for him.
Is advertising an offer?
Usually advertising is not considered a public offer. Advertising leaflets often have a special warning about this. Indeed, advertising almost never stipulates specific conditions for possible future contracts.
However, according to Art. 394 GKRF, in certain cases, advertising is equal to a public offer:
1. An offer of goods in its advertising, catalogs and descriptions of goods addressed to an indefinite circle of persons is recognized as a public offer (clause 2 of Article 437) if it contains all the essential conditions of a retail sale contract.
2. The display at the point of sale (on shelves, in display cases, etc.) of goods, 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 whether the price and other material terms of the retail sale contract, unless the seller has expressly determined that the relevant goods are not for sale.
Advertisers do not like this very much, because the offer agreement imposes obligations on the provider to fulfill it, and they try to avoid this so that later they will not have claims from the law for unfair advertising.
Does the offer have a validity period?
According to Article 11 of the Federal Law "On Advertising":
If, in accordance with the Civil Code of the Russian Federation, an advertisement is recognized as an offer, such an offer shall be valid for two months from the day the advertisement is distributed, provided that it does not specify a different period.
Therefore, if the validity of the offer is not indicated 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. This takes into account whether the acceptance text is indicated in the proposed text. There may be the following situations:
- The deadline for confirmation of your consent (acceptance) is indicated directly in the offer (Article 440 of the SCRF). Then, if the contract is received by the provider no later than this period, it will be considered concluded.
- When the deadline for acceptance is not set in the written offer (Art. 441 of the SCRF). In this case, the contract is considered concluded either within the time limits established by law, or during the time that is usually considered necessary for this.
- If the offer is offered orally, then for it the law provides for immediate acceptance.
