What is an offer and a public offer according to the Civil Code of the Russian Federation (example, sample). Proposal to conclude an agreement (offer) Draft offer

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 contract does not send an offer before the end of such a period, the obligations of the parties under the preliminary contract 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 a contract 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 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 dated 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, sending a telegram with a proposal to appear to conclude a contract of sale real estate the court did not regard it as a proposal to conclude an agreement and indicated that the obligations of the parties ceased, since neither 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 of 04.26.10 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 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 contract (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 cover letter) 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 as insufficient evidence: it does not allow you to find out exactly what kind of correspondence was sent and whether the counterparty received the letter (decree of the Federal Arbitration Court of the East Siberian District dated 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 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).

Offer (offer agreement)- this is a proposal to conclude a cooperation agreement indicating the main details of the transaction: name, quantity, quality, price of goods, terms and conditions of delivery, payment, delivery method. It is a preliminary stage of the conclusion of the contract. The person making the offer is called the offeror, and the person accepting the offer is called the acceptor. An offer made to an indefinite circle of people is called public offer.

How to write an offer (offer letter)

An offer letter is written either in response to a letter of inquiry or at the initiative of the sender. An offer is drawn up in writing or orally: by phone, during negotiations between the parties to the transaction.

Design offer can be in the form of a draft contract, which one party to the transaction sends to the other. In the response letter, the second party either agrees (which is called acceptance), or makes its own changes or additions, or refuses to accept the proposed conditions.

Acceptance of the offer is the conclusion of a contract or the issuance of an order. In case of refusal, correspondence between the parties continues until a final agreement is reached.

The structure of writing an offer corresponds to the general structure of a business letter:

• header - position, full name of the recipient and name of the organization;
• number and date of registration of the letter;
• title (“Oh…”);
• appeal (if necessary);
• the text of the offer - here the proposal itself is stated and the main terms of the transaction are indicated: “We offer you to conclude an agreement / services for ...”, “In response to your request from ...”, “Company X brings to your attention ...”, “We are glad to offer you ... " etc.;
• the signature of the sender - the head of the organization or an authorized person, indicating his position and full name.

Sample letter of offer

Director
OOO "Express Product"
Ulyanova N.V.

The company "Baby Decor" - the exclusive representative of the German TM Borbo on the territory of Ukraine offers a wide range of products for newborns: towel corners after bathing, sleeping bags, bed linen, orthopedic pillows, mattresses, nursing pillows, envelopes, blankets, pouffes and much more.

In the production of TM Borbo products, only the most modern, safe materials are used. All products are certified in accordance with the requirements of Ukrainian and international standards quality.

TM Borbo products meet the following basic principles:

• safety - materials that are environmentally friendly and safe for children's health are used in the production of goods;
• style - a variety of forms, original embroideries and color schemes;
• reliability - production is controlled at all stages;
• availability - competitive prices with high quality goods.

The company "Baby Decor" invites retail and wholesale partners to mutually beneficial cooperation.

Terms and conditions of delivery of goods

Orders are accepted by e-mail or by fax. Before placing an order, please make an inquiry about the availability of goods in the warehouse of the manufacturer. After confirmation of the order, you will be issued an invoice. The invoice requires your confirmation (verification of the product name, quantity, value). Confirmation can be sent by email or fax.

Terms of payment - prepayment of 70%, additional payment of 30% is carried out before shipment of goods from our warehouse.

The order fulfillment time is 45 working days, starting from the day of payment and subject to the availability of goods in the warehouse of the manufacturing factory.

If the required items are not in the factory warehouse, within 7 working days you will be provided with information regarding the date of their appearance in the factory warehouse and the delivery time will be 45 working days, starting from the date the items appear at the factory.

Price list and product samples are attached.

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 the parties, in the form required in the relevant cases, have reached an agreement 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 may be concluded by drawing up a single document signed by the parties, as well as by exchanging documents by means of 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

An 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 period established by law, and if such a period is not established, within the time normally required 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.

Quite often, in advertisements on TV or on the Internet, you can hear the words “is not a public offer” or “accept a public offer”. As a rule, there is no clear understanding of the legal nature of the offer, and it is not entirely clear what it means to “accept the offer”.

In Russian civil law, it is defined as follows: an offer that is sent to 1 person or a group of persons. At the same time, such an offer contains some initial conditions of the contract, and if a citizen accepts the offer, it is considered that he has concluded such an agreement.

In this way in simple terms, an offer is an offer of certain conditions from the seller to the buyer (goods or services), which is sent in writing or orally. When the buyer purchases the goods, he accepts the offer, and hence all the terms of this contract.

Therefore, we are talking about a transaction in which 2 parties participate:

• the offeror is the seller himself, represented by a firm, a company and any other legal entity, as well as an individual entrepreneur or a private person;
• the addressee is the buyer, who is also called the acceptor (English accept - accept); The addressee can also be any party - as individual as well as the firm.

The consent of the buyer with the terms of the offer is called acceptance - it is he who gives it to the seller when purchasing a product or service. Acceptance is given in writing or orally (for example, by telephone).

It turns out that an offer is not a contract, but a proposal to conclude it on certain conditions. When the addressee accepts the offer, it means that he agrees to these conditions. In this case, each side receives its own advantages:

1. The seller receives a guarantee that the buyer has accepted the offer by giving him prior consent to the terms of the contract.
2. The buyer receives a guarantee that during the entire period of validity of the offer, the seller will no longer be able to change the terms of his offer: price, conditions of the promotion, quantity of goods, etc., even if it becomes unprofitable for him. That is why very often sellers play it safe and say: “Offer is not public offer", thereby removing any obligations from itself.

There are several types of offer, the classification of which depends on the number of persons to whom the offer is addressed. However, all offers are characterized by several common features:

• such an offer always reflects the intention of the parties to conclude a contract;
• all essential terms of the contract that the parties intend to conclude in the future;
• description of the subject of the transaction: names of goods and/or services, their description, price;
• an important feature of any type of offer is the presence of a certain period that is given to the buyer for the final decision (during this time the seller is not entitled to withdraw the offer of goods);
• the offer always has a targeting - it is directed to a specific circle of individuals or legal entities.

Offer and contract

All of the above conditions allow you to see many similarities between the offer and any contract that is drawn up during the transaction. Therefore, they often say: “offer agreement” or “public offer agreement”, which is not entirely correct. The reason is that an offer is an offer to conclude an agreement on certain conditions and within a specific period of time; and any contract is an agreement that the parties are signing at the moment.

NOTE. Often when making a purchase of an expensive product (for example, Appliances, phones, cars, etc.) the buyer signs several documents without looking. Some of them may contain the word "offer". This should be understood in such a way that when signing, the citizen has already agreed to the terms of the future contract, so you should carefully watch what exactly you are signing.

Examples of offers from everyday life

Any 2 citizens, firms, public associations– i.e. both individuals and legal entities.

Offer in the store

If you think about it, every citizen is faced with an offer several times a day. By entering the store and purchasing goods, you give the seller your consent in advance to the terms of the contract of sale, which is supposed to be concluded between you. Legally, this consent is expressed in the fact that you are purchasing a product of the established quality, weight, volume at a certain price.

That is why if at the checkout it turns out that the price in the check does not match the one indicated on the price tag, the buyer has every right to demand that the goods be sold to him exactly according to the data from the price tag. Otherwise, the seller violates his offer.

The price tag is a guarantee that all the information provided about the product is reliable. Ideally for reverse side there must be a seal of the store and the signature of the responsible person, since the price tag is not just paper, but a full-fledged legal document.

Offer in promotional offers and product catalogs

Another example is catalogs with products, as well as advertisements that contain a clause that the specified promotion is related to the offer. A special clause may also be given, stating that the promotional offer does not apply to the offer. There are also cases of making a remark that the offer is relevant only if the goods are available. Sellers thus insure themselves against undesirable consequences.

Loan agreement with a bank

And finally, another common option is an offer that the bank often offers to customers. If a citizen applies for a loan, then first he is offered to sign an application for consideration of the relevant application. And it states that in the event of a positive decision of the bank, the client already gives his acceptance (consent) to the terms of the loan agreement in advance.

Varieties of the offer

The most well-known type of offer is public. However, along with it, there are several other, less common types:

• hard;
• irrevocable;
• free.

The types of offers differ in those to whom they are addressed, as well as in the specifics of their implementation in practice.

Public offer

The name of this proposal explains its essence: it is an offer that is addressed to a large, fundamentally unlimited circle of people. For example, a store offers to buy any product at a certain price to any person - regardless of his age, citizenship, etc.

A public offer is characterized by several features:

• most often, the offer is formulated verbally, and the buyer does not have to sign additional documents in order to accept the offer: for example, the buyer simply pays for the goods and receives a check in return;
• the buyer is any person;
• public offer- This is the most common form of advertising on the web, on television, catalogs and in physical stores.

1. As an offer - i.e. with a guarantee of the validity of the proposed conditions until a specific date.
2. Not an offer - without any guarantees (classic promotion).

Firm offer

Such an offer is made from one seller (private citizen or legal entity) to one buyer. Those. the circle of persons is clearly defined and consists of 1 addressee, which can also be an individual or a legal entity. This type of agreement is called firm, since a number of specific conditions are met:

• the offer specifies a specific product or service;
• the duration of the offer is always agreed in advance;
• if the buyer has agreed, then the transaction is considered automatically completed - i.e. The sales contract is no longer signed.

Irrevocable offer

In many cases, the offeror can withdraw his offer exactly as long as the buyer has not accepted it. Those. before the purchase is made, the seller can change the terms of his offer. However, in some cases, the document immediately contains an indication that such an opportunity is not provided, and the offer will be irrevocable.

Most often, an irrevocable offer is implemented through the interaction of firms and individual entrepreneurs. For example, if a company ceases to exist due to bankruptcy, its founders send out an offer to purchase the company to commercial partners. Such an offer is valid indefinitely - until the company is bought.

Free offer

Such an offer is very common in cases where a company enters a new market for it (or a new region of presence). Wishing to study possible consumer demand, the company sends an offer to specific recipients. Any of them can purchase a product or buy a service, and the seller is obliged to fulfill his promise. By the number of responses, the seller judges the possibilities of the market.

Unlike a public offer, a free offer is addressed to specific firms or individuals, and not to an unlimited circle of buyers.

How to make an offer

A written offer is essentially offer seller to a potential buyer. However, the offer has the legal force of the contract if the buyer signs it. When drawing up such an agreement, it is always indicated that it is an offer. It is also important to indicate contact details and other necessary information:

1. Comprehensive, reliable information about the product or service that is supposed to be sold (name, characteristics, quantity, cost, etc.).
2. Methods of concluding a deal (signing a contract).
3. Ways to transfer funds for the purchase, indicating the relevant contacts and details of the seller (cash, non-cash).
4. Liability for possible violation of the offer.

The form can be created independently, because unified form no.