Offer to conclude a deal 6. Offer: its meaning and use in international trade in goods and services. Offer or commercial offer

Acceptance of the offer (acceptance).

The party making the offer is called the offeror. The recipient is the acceptor.

Chapter 28 Article 402-413.

Article 402

1. The contract is considered to be concluded if an agreement is reached between the parties in the form required in the relevant cases on all essential terms of the contract.

Essential are the conditions on the subject of the contract, the conditions that are named in the legislation as essential, necessary or mandatory for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement should be reached.

2. The contract is concluded by sending an offer (proposal to conclude a contract) by one of the parties and its acceptance (acceptance of the offer) by the other party.

Article 403. Moment of concluding a contract

1. The contract is recognized as concluded at the moment the person who sent the offer receives its acceptance.

2. If, in accordance with the legislation, the transfer of property is also necessary for the conclusion of the contract, the contract shall be considered concluded from the moment of transfer of the relevant property (Article 225).

3. Contract to be state registration, is considered concluded from the moment of its registration, and if notarization and registration is necessary - from the moment of registration of the contract, unless otherwise provided by legislative acts.

4. An agreement concluded on an exchange is considered concluded from the moment determined by the legislation regulating the activity of such an exchange, or by the rules in force at the exchange.

Article 404. Form of the contract

1. An agreement may be concluded in any form provided for transactions, unless a specific form is established for agreements of this type by this Code and other legislative acts.

If the legislation does not require a notarial form for this type of contract, but the parties agreed to conclude it in such a form, then the contract is considered concluded from the moment it is given a notarial form.

If the legislation for this type of contract does not require a written (simple or notarized) form, but the parties agreed to conclude it in a simple written form, then the contract is considered concluded from the moment it is given a simple written form.

2. An agreement in writing can be concluded by drawing up a single document signed by the parties, as well as by exchanging documents by postal, telegraph, teletype, electronic or other communication, which makes it possible to reliably establish that the document comes from the party under the agreement.

3. The written form of the contract is considered to be observed if the written proposal to conclude the contract is accepted in accordance with paragraph 3 of Article 408 of this Code.

Article 405. Offer

1. An offer is recognized as an offer addressed to one or several 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.

2. The offer binds the person who sent it from the moment it is received by the addressee. If the notice of withdrawal of an offer was received earlier or simultaneously with the offer itself, it shall be deemed not received.

Article 406. Irrevocability of an offer

The offer received by the addressee cannot be revoked within the period established for its acceptance, unless otherwise stipulated in the offer itself or follows from the essence of the offer or the situation in which it was made.

Article 407. Invitation to make offers

2. A public offer is a proposal containing all the essential terms of the contract, from which the will of the person making the offer is seen to conclude an agreement on the conditions specified in the proposal with anyone who responds.

Article 408. Acceptance

1. Acceptance is the response of the person to whom the offer is addressed about its acceptance.

The acceptance must be complete and unconditional.

2. Silence is not an acceptance, unless otherwise provided by law or by agreement of the parties.

3. The performance by the person who received the offer, within the period established for its acceptance, of actions to fulfill the conditions of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) is considered acceptance, unless otherwise provided legislation or not specified in the offer.

Article 409. Withdrawal of acceptance

If the notice of withdrawal of the acceptance was received by the person who sent the offer earlier or simultaneously with the acceptance itself, the acceptance shall be considered not received.

Article 410

When the period for acceptance is specified in the offer, the contract is considered concluded if the acceptance is received by the person who sent the offer within the period specified in it.

Article 411

1. When the deadline for acceptance is not specified in the written offer, the contract is considered concluded if the acceptance is received by the person who sent the offer before the expiration of the deadline, established by law, and if no such period is fixed, within the time normally necessary for this.

2. When an offer is made orally without specifying a deadline for acceptance, the contract is considered concluded if the other party immediately declared its acceptance.

In a situation where one of the parties to the preliminary contract evades concluding the main contract, you can apply to the court for compulsion to conclude it (clause 4, article 445 of the Civil Code of the Russian Federation). However, in order for the court to satisfy the requirements, it is necessary to send a letter to the counterparty in a timely manner with a proposal to conclude the main contract. The absence of certain elements in this document may lead to the fact that the court will not evaluate it as a proposal to conclude a contract and, as a result, will refuse to satisfy the requirements for compulsion to conclude a contract. That is why the subtleties of the content and wording of this document are of particular importance to practicing lawyers.

Checkpoints during checkout

1. An offer to conclude an agreement must be sent before the expiration of the period established for the conclusion of the main agreement. As a rule, the parties independently set this period in the text of the preliminary contract. If the contract does not specify a period, it is recognized that it is equal to one year from the date of conclusion of the preliminary contract (clause 4, article 429 of the Civil Code of the Russian Federation). If the company interested in concluding the main agreement does not send an offer before the end of such a period, the obligations of the parties under the preliminary agreement will cease (clause 6 of article 429 of the Civil Code of the Russian Federation). Thus, the proposal to conclude a contract will no longer be binding on the acceptance of the other party. This means that a company that avoids signing a contract cannot be forced to conclude it.

2. The offer must contain a specific proposal to conclude the main contract, so it is necessary to exclude the double interpretation of the letter. So, in one of the cases, the court decided that the plaintiff's demands for compulsion to conclude an agreement were not subject to satisfaction, since, based on the literal meaning of the words and expressions contained in the letter, it follows that the defendant only reminded the plaintiff about the expiration of the period in which the parties had to conclude the main contract (decree of the Federal Arbitration Court of the Moscow District dated July 6, 2009 in case No. A40-57031 / 07-89-416). Otherwise, the court may consider the letter vague and not qualify it as an offer (decisions of the Federal Arbitration Court of the Moscow District of 06/02/10 in case No. A41-20618 / 09, the Ninth Arbitration Court of Appeal of 10/19/10 in case No. A40-31192 / 10-91-204). It is better to use more precise and specific wording, for example, “we propose to conclude a main agreement” or “we are sending a draft main agreement for signing”.

3. Any offer, including a proposal to conclude the main contract in pursuance of the preliminary one, must contain all the essential conditions (clause 1, article 435 of the Civil Code of the Russian Federation). If there are no essential conditions in the text of the letter, it will not be considered an offer, which means that the court has the right to leave the claims without consideration due to non-compliance by the parties with the pre-trial procedure for settling the dispute (ruling of the Federal Arbitration Court of the Urals District of 08.24.10 in case No. A50- 42453/2009).

4. In some cases, indicating the essential conditions in the text of the letter may not be enough, and a draft contract must also be attached to the proposal. For example, if an agreement can be concluded only by drawing up one document signed by the parties (in particular, when renting a building or structure (clause 1, article 651 of the Civil Code of the Russian Federation)). So, in one of the cases, the sending of a telegram with a proposal to appear to conclude a contract for the sale of real estate was not regarded by the court as a proposal to conclude an agreement and indicated that the obligations of the parties had ceased, since none of the parties sent the draft agreement to the other party within the prescribed period ( decision of the Federal Arbitration Court of the Moscow District dated April 26, 2010 in case No. A41-22880/09).

What else to pay attention to

First moment. It is important not only to timely send an offer, but also to receive it by the counterparty within the time period established for concluding the main contract (decision of the Seventh Arbitration Court of Appeal dated 03.06.09 in case No. A67-90 / 09). Since the offer binds the party that sent it from the moment it is received by the addressee, non-receipt (late receipt) of the offer entails the termination of obligations under the preliminary agreement (clause 2 of article 435 of the Civil Code of the Russian Federation, decision of the Federal Arbitration Court of the North-Western District of 17.06.05 in case No. A56- 28245/04). Therefore, the courts find out exactly when the party evading the conclusion of the contract received the offer. Moreover, the plaintiff, that is, the company that is interested in concluding the contract, must prove the fact of receiving the offer (decision of the Tenth Arbitration Court of Appeal dated 05.03.07 in case No. A41-K1-22718 / 06).

The method of sending is also important: the court must be able to establish that the letter was sent and received by the addressee. So, for this reason, in one of the cases, a telephone message with a proposal to conclude an agreement was not accepted as evidence (ruling of the Federal Arbitration Court of the Urals District of February 10, 2009 in case No. A50-7112 / 2008). It is better to hand over the letter to the representative of the counterparty personally (by courier) or send it in advance by mail.

When sending a letter by courier, it is necessary that the counterparty put a mark on the receipt of the letter on the second copy, which will be kept by the offeror.

When sending a letter by mail, it is recommended to choose the option of a valuable letter with a description of the attachment and a receipt. The inventory is needed to confirm that it was the proposal to conclude an agreement (or a draft agreement with a cover letter) that was sent, and not other correspondence. A notification of delivery will allow you to set the date of receipt of the letter by the counterparty. It is for this reason that the court may consider a receipt for sending by registered mail insufficient evidence: it does not allow you to find out exactly what kind of correspondence was sent and whether the counterparty received the letter (ruling of the Federal Arbitration Court of the East Siberian District of March 18, 2010 in case No. A78-3886 / 2009 ).

Second moment. The company with which the preliminary contract has been concluded, after receiving the offer, must respond by sending a notice of acceptance (refusal of acceptance) or a protocol of disagreements to the draft contract within thirty days from the date of receipt of the offer (clause 1, article 445 of the Civil Code of the Russian Federation). The party that sent the offer and received a notice of its acceptance on other terms (a protocol of disagreements to the draft contract) has the right to refer the disagreements that arose during the conclusion of the contract to the court for consideration within thirty days from the date of receipt of such a notice or the expiration of the period for acceptance. 1 article 445 of the Civil Code of the Russian Federation, decision of the Ninth Arbitration Court of Appeal dated 03.08.10 in case No. A40-157625 / 09-157-1144).

Public offer is an offer to enter into contractual relations addressed to a wide range of persons. About what applies to public offer and what actions offer are not considered, will be discussed in this article.

Defining an offer: how to say it in simple terms

Offer on Civil Code of the Russian Federation is defined as an offer to make a transaction addressed to one or several persons (individuals or legal entities). Depending on the type of contract proposed for conclusion, the offer can be ordinary and public.

What is a public offer? in simple terms? This is an offer made to an unlimited and yet indefinite number of recipients. Anyone can accept this offer. The form offers coincides with the form of the transaction being made, that is, it is possible both orally and in writing.

In commercial practice offer often represents a draft agreement sent by an interested person to a potential counterparty. Sometimes they say what is an offer contract. However, it can also be in the form business letter- in this case, the draft agreement is developed by the parties after reaching agreement on all points. An example of an offer in everyday life, for example, there may be an appeal from the owner of a summer cottage to a neighbor regarding the sale of surplus vegetables. Or an appeal to a friend with a proposal to lend some item (baby stroller, sled, etc.) for temporary use.

What legal requirements must offer? We list the main provisions about the offer of the Civil Code of the Russian Federation:

• offer is of a certain nature, clearly expresses the intention of the offeror (the initiator of contractual relations) to conclude a deal;
• sent to one or several subjects at once;
• denotes all material terms of the future agreement (i.e. those without which this species transactions cannot be executed): for example, for a sale agreement, the condition for the sale of an object will be essential, and for a contract agreement, the conditions for the work performed and an indication of the deadline for its completion;
• offer received by the addressee cannot be withdrawn during the period of time provided for a response to it (however, in the offer may be subject to revocation).

If the subject who received offer, she is completely satisfied, he can accept it (for example, sign the received draft agreement, send a response letter of consent to formalize the transaction, actually begin the execution of the agreement). Silence does not equate to acceptance GC offer RF. According to the code, an acceptance is required to conclude a contract, but the opposite practice is also found among entrepreneurs.

How to prepare an offer?

A written offer to conclude a transaction is sent both at the initiative of the offeror himself, and in response to a request from the other party. It can be in the form:

• a detailed draft treaty, in which even not very essential details are spelled out;
• letter containing the most important conditions on which cooperation is possible;
• a message that specifies only the essential terms of a future transaction.

A business letter with a proposal to conclude a deal includes the following components:

• a header containing the addressee's data;
• outgoing number and date;
• details of the letter to which the answer is given (if offer sent in response to someone's question about the possibility of cooperation);
• title;
• appeal (if the document is addressed personally to the head);
• body offers(this part of the document lists the conditions under which the author of the letter agrees to draw up a contract);
• sender's signature with full name and position.

For information sample offer posted on this page.

Sample Letters of Offer to the conclusion of contracts for the provision of services and supplies

Offer to conclude a service agreement (form)

offer)

______________________________________________

(name of company)

« »___________ 20__ No. ____

On the conclusion of a contract for the provision of services

We invite you to conclude a service agreement

___________________________________________________________________

under the following conditions:

1) __________________________________________________________________;

2) __________________________________________________________________;

3) __________________________________________________________________.

Looking forward to your reply by “___” _______________ 20 __

Don't know your rights?

Product supply offer (form)

______________________________________________

(position of the addressee - to whom it is intended offer)

______________________________________________

(name of company)

« »___________ 20__ No. ____

to No. ________ dated "" ___________ 20__

About product delivery

Thank you for the inquiry from ""_________ 20__ and we inform you that we can offer you _____________________________ in the amount of _______________.

(Name of product)

Quality: _______________.

Package: _______________.

Price: _______________.

Delivery time: _______________.

Terms of payment: _______________.

This offer is valid until "" _________ 20__.

Sincerely, __________________________________________________________

(position, signature and full name of the addressee)

(Name of organization, seal)

In what cases is a public offer used to conclude a contract?

A special version of this document is public offer. This term denotes a proposal to conclude a deal, addressed to an indefinite circle of subjects. The law names the following signs public offer:

• contains the essential terms of the expected transaction;
• from its text it is obvious that any person who applies can enter into a contractual relationship.

If the advertisement for the sale of goods, the provision of services explicitly states that it concerns only certain categories of citizens, then such a message public offer does not count.

It should be noted that public offer can be presented not only in written or oral form, but also in the form of certain actions. Thus, displaying goods on the trading floor, on showcases and counters, placing product catalogs or descriptions in the store is also considered a public offer to buy these items at retail. The named actions are offer even in cases where the seller did not indicate the price of the offered goods.

As an example of a public offer to conclude a contract, we can name the information posted on the website of the online store:

• about the range;
• product prices;
• terms and order of payment and delivery;
• Store warranties and responsibilities.

Sometimes such information expressly states that it is offer.

Why is it marked “not a public offer” in advertising?

The law says that, as a general rule, advertising offer is not recognized. This is quite logical, because the purpose of advertising is to put goods and services in a favorable light, and not to convey to consumers all the conditions for their purchase.

However, if the text of the advertisement includes all the essential terms of the future contract, then the advertisement is considered offer. And if such an advertising offer is designed for all responders, then it is public offer.

Offer obliges the person who made it to conclude an agreement on exactly the conditions that were indicated in it. For example, if we are talking about selling a refrigerator of a certain model at a price of 15 thousand rubles, then it will no longer be possible to put it up for sale at a different price. Therefore, advertisers, as a rule, are not interested in the fact that the advertising they distribute has signs offers.

In this regard, the phrase " is not public offer” – in this way, advertisers expect to leave themselves an escape route. In fact, the addition of this mark does not play a significant role, since the legislator does not give the right, even with the help of such a clause, to turn an advertisement that is offer, to an advertisement that is not such.