Public offer rules. How to understand that this is a public offer. When does an offer become a contract?

03.03.2020

An offer is an offer to conclude an agreement for the supply of goods or the provision of certain services. The offer is made in writing. It may be sent to one or more persons. The offer must set out the conditions for the supply of goods or the provision of services, as well as the terms and other information that can attract the attention of the buyer.

An offer usually precedes a contract if required by law. In other cases, the offer itself can serve as a contract. The recipient of the offer may agree to the offer, then the consent is made in writing.

He can, accepting the offer, send a counter-offer to the supplier, i.e. his proposals for delivery, terms and conditions. In this case, the parties either agree on the terms or refuse to complete the transaction.

In addition, the buyer can simply remain silent, having received an offer. This means that the potential buyer is not interested in the transaction, and after the time established by law, the supplier can send his proposals (offer) to another potential buyer.

The offer is called solid if it is directed to one specific person. The offer is called free in the event that it is sent to several persons.

There is also such a form of offer as a public offer.

Public offer - what is it?

Offers for the supply, sale or provision of certain services sent to persons, the number of which is not defined or specified, are considered to be a public offer.

That is, the buyer in this case can be any person who responded to the offer. An example of a public offer is an advertisement that contains the terms of the supplier, delivery times, prices and an offer to conclude an agreement in one form or another.

Sometimes the seller specifically stipulates in his advertisement that it cannot be considered a public offer. This means that there are additional conditions that the seller will set out when concluding a contract or discussing a deal. The seller also reserves the opportunity to change the terms of the transaction if compliance with them turns out to be unprofitable for him.

Example

As an example of a public offer, let's take an offer from an online store. Actually, it does not differ in anything special from generally accepted contracts for the sale and supply of certain goods.

The difference is that the seller in the introductory part directly indicates that this agreement is both an agreement and an offer, as well as the fact that it is sent to any person: both individuals and legal entities, without specific instructions to whom .

This is followed by standard chapters and paragraphs that talk about the conditions and terms of delivery, prices, liability of the parties, force majeure, special conditions, etc. If the buyer places an order, this means that he agrees to the terms of the offer.

Are the prices a public offer?

This question comes up very often. Let's try to answer it. Prices for certain goods are one of the conditions of the offer agreement. By themselves prices are not a public offer. The cost of the goods indicated on the price tags in stores retail or in online stores are only an advertisement, an invitation to a transaction or a contract.

Public offer on the website

Public offer, posted on a particular site, is nothing more than an offer to conclude an agreement, for example, for the supply or performance of certain actions either by the person who published the offer, or joint actions.

Such agreements include both transaction agreements purchase and sale and for joint events. Consent with the proposed offer can be expressed by registering on the website of the person who offered the offer, by ordering one or another product.

Violation of the public offer

Both the person who offered his offer and the person who accepted it enter into certain contractual relations. These relations can be both formalized by an agreement, and remain sealed by an offer.

If any of the parties violates their contractual obligations, liability arises within the framework of the Civil Code of the Russian Federation. Unless, of course, in the actions of the party that violated the contract, there is no intent to commit a crime.

Discussion (7 )

Indeed, we often meet with an offer in everyday life. In newspapers, magazines, other announcements that publicly inform an indefinite circle of individuals and legal entities about the conditions for the sale of a particular product, the issuance of loans on certain conditions, the procedure and sequence for concluding contracts. As a rule, the terms of the offer are obligatory for persons who have publicly announced the offer.

Most of the scammers who create bait sites today rely on the provisions of the public offer. At the same time, a person subscribing to the newsletter and the subsequent purchase is usually not warned that he is entering into an agreement.

An offer is not a familiar word for an ordinary person, but everyone participates in it sooner or later. One of the types of offer is irrevocable, in which it obliges the offeror to conclude an agreement on the specified conditions without the possibility of refusal with all responding counterparties without exception. Therefore, such offers are not public and are applied to a limited circle of people.

From the article "The prices themselves are not a public offer."
But here I disagree, if you go to retail store, then by law, in essence, the price tags are a “public offer”, as they oblige to sell the goods on these conditions. And the law directly states what will happen to the seller who refuses to fulfill this “public offer”. But on this topic, you can argue for a long time.

An offer for an ordinary person is not an understandable word, but nevertheless, every person participates in such a transaction sooner or later. For example, who hasn't received emails from banks with a credit card attachment? Probably a good half of the population. This is the offer, the letter indicates both the calculation procedure and the interest rate and others. the necessary conditions agreements between the bank and the potential borrower. Controversy is an interesting thing in general. In 2013, the man so changed the conditions for issuing a loan that the bank owed him a large amount. Since then, banks have somehow calmed down and are increasingly trying to personally communicate with customers.

There was a funny situation in our organization regarding the counter-offer. As part of attempts to conclude a contract for the lease of special equipment, they exchanged counter-offers with a potential contractor for almost a month, in total, before acceptance occurred, the document was edited six times. In the end, of course, the deal was signed.
But seriously, there is no mention of another type of offer here. The so-called irrevocable offer, which obliges the offeror to conclude an agreement on the specified conditions with all responding counterparties without exception without the possibility of refusal. Therefore, such offers are not public and are used mainly in the field of offers for the redemption or full redemption of shares / bonds of the enterprise (for a limited circle of persons). There is even a special type of bond with an offer. In this case, it is used for non-market regulation of the security's rate of return.
In general, any offer is a kind of touchstone, a pioneer of the contractual process, which allows monitoring the target group without imposing special obligations on the offeror (unless, of course, it is an irrevocable document), the popularity of which is growing.

What is a public offer?

According to the legal definition, a public offer is “containing all essential conditions of the contract, an offer from which the will of the person making the offer is seen to conclude an agreement on the conditions specified in the offer with anyone who responds ”(see clause 2 of article 437 of the Civil Code of the Russian Federation).

This formulation contains three main points on which the public offer:
1) it should be clear to everyone that the document clearly expresses the intention of the person indicated in it to conclude an agreement;
2) the offer to conclude a contract contains all its essential terms;
3) the proposing person (offerer) is ready to conclude such an agreement with any person who agrees to accept this proposal without reservation.

Preamble of the public offer for the site

This document is a formal offer by [name of the site owner], hereinafter referred to as the "Contractor", to conclude a contract for the production of souvenirs on the terms and conditions set out below.

As you can see, the preamble of the public offer is designed to fulfill the first requirement. Therefore, it explicitly indicates the person making the offer and expresses his intention to conclude a contract on the conditions set out in the offer.

1. Terms and definitions of the offer for the site

1.1. In this document and the resulting or related relations between the Parties, the following terms and definitions apply:

1 .1.1. Public Offer / Offer - the text of this document with all annexes, amendments and additions to it, posted on the Contractor's Website and available on the Internet at:

The scope of the legally binding offer is disclosed here. The network address is indicated in order to designate the location of the offer to prove its placement on the Internet if it is necessary to provide written evidence of the transaction.

1.1.2. Treaty- a contract for the performance of work, together with all the Mandatory documents related to it, concluded between the Contractor and the Customer on the terms of this Offer.

It's important to know! An offer is just a proposal to conclude a contract. The contract itself is concluded by unconditional acceptance of the offer (its acceptance). Thus, the offer expresses the content of the contract concluded on its basis, but in itself is not a contract. Therefore, the often used term "contract-offer" is not correct.

It follows from this that the offer is changed and withdrawn regardless of the contract concluded on its basis. The contract is concluded, amended and terminated in accordance with the rules provided for in the offer and the current legislation. Therefore, in the offer, the provisions on changing and withdrawing the offer are set out separately from the conditions for concluding, changing and terminating the contract.

1.1.3. Works include:
a) work on the manufacture of souvenirs based on the Models provided by the Customer;
b) work on the manufacture of souvenirs based on the Models presented on the Contractor's Website;
c) other work and / or services related to the performance of the work provided for in paragraphs. "a" and "b" of this paragraph, or having a preparatory character.

The public offer must clearly define the subject of the contract concluded in accordance with it. In this case, this is done in a rather general way to indicate the type of contract and the work related to its subject. The specification of the subject of the contract is carried out by the parties in the bids.

1.1.4. Offer acceptance- full and unconditional acceptance of the Offer by the Customer performing the actions specified in this Offer, creating an Agreement between the Customer and the Contractor.

Legislation allows the conclusion of an agreement not only by signing a single document by two parties. The fact of the conclusion may be confirmed by other actions of the parties aimed at accepting the terms of the transaction.

1.1.5. Customer- a person capable of making an Acceptance of the Offer (in relation to the procedure for concluding the Agreement) or who has made an Acceptance of the Offer (in relation to the execution of the concluded Agreement.

This definition is important from the point of view of determining the circle of persons with whom the contract is concluded. If necessary, you can set restrictions on the conclusion of transactions here. legal entities or individuals under the age of majority.

Since in the definition under consideration, the customer is considered not only the person who has entered into the contract, but also the person intending to do so, the conditions for the provision of personal data will relate to the use of processing cases for the purpose of concluding a contract.

1.1.6. Website of the Contractor / Website- automated Information system, available on the Internet at the network address www.... .

It is important to get ahead of what site is referred to in this offer, since it contains the offer itself and the system for ordering works.

1.1.7. Personal Area- a personal section of the Site, to which the Customer gains access after registration and / or authorization on the Site. The personal account is intended for storage personal information the Customer, placing Orders, viewing statistical information about completed Orders, the stage of their implementation, the current state of the Personal Account, and receiving notifications.

1.1.8. personal account- information about the funds contributed by the Customer and written off as part of the execution of the Contracts as payment for the Works performed under the specified Contracts. Access to the Personal Account is provided to the Customer using its Personal account.

1.1.9. Order- performance by the Customer of the actions listed on the relevant page of the Site, necessary for the execution of a separate Agreement.

1.1.10. Layout- an image of an object saved in the digital format provided for by the Regulations and intended for the manufacture of souvenirs. The Customer provides the Executor with a Layout or selects it from those available on the Site during the execution of the Order for the production of souvenirs.

2. Subject of the Agreement

2.1. The Contractor undertakes to perform the Works on the basis of the placed Orders, and the Customer undertakes to accept and pay for the Works on the terms of this Offer.

In fact, the offer describes the rules for concluding contracts for each individual order. Those. during the period of the public offer, the customer can place multiple orders, for each of which a separate contract will actually be concluded.

2.2. The name and scope of the Works, the terms and cost of their performance, as well as other necessary conditions of the Agreement are determined on the basis of the information and materials provided by the Customer when placing the Order, in accordance with the terms of the Mandatory Documents.

The essential terms of the contracts concluded under the offer are placed in separate orders. The latter are placed in accordance with the terms of the documents binding on the parties that regulate the organizational and technical aspects of the conclusion and execution of contracts.

2.3. A prerequisite for the performance of the Works by the Contractor is the unconditional acceptance and compliance by the Customer with the requirements and provisions applicable to the relations of the parties under the Agreement, defined by the following documents (“Mandatory Documents”):

Below is a list of documents posted on individual pages of the Site. Mandatory documents are intentionally taken out of the scope of the terms of the contract. Due to this, they can be changed unilaterally. The customer acknowledges their obligation and agrees to the conclusion and execution of the contract subject to them. As an understandable analogy, let us refer to the procedure for concluding insurance contracts, which in most cases are formalized by issuing an insurance policy. The insurance conditions themselves are set out in the insurance rules, which are approved by the insurer unilaterally.

In this case, the mandatory documents may include the Price List and the Regulations for the performance of work. Depending on the subject of the contract, other mandatory documents. In communications services, these include Tariff plans, Terms information service, Regulation technical support etc.

3. Rights and obligations of the parties to the Agreement

The section defines the procedure for interaction between the parties in the framework of the execution of the concluded agreement.

4. The order of acceptance and transfer of work

Here, the rules for the shipment or delivery of the results of work, the moment of transfer of ownership and the risks of accidental loss of products, the requirements for registration of acceptance and transfer, the deadlines for reporting shortcomings, etc. are fixed.

5. Guarantees and liability of the parties

The section reflects the limits of the contractor's obligations for shortcomings in the work, liability for violation of the terms of payment or performance of work, transfer of their results to the customer, etc.

6. Acceptance of the Offer and conclusion of the Agreement

Here the rules for concluding an agreement are determined depending on the order, the fact of payment, the provision of the Layout, or the performance of another necessary action.

7. Validity and change of the Offer

This section contains rules on the procedure for changing and withdrawing a public offer.

8. Validity, modification and termination of the Agreement

The section provides for the procedure for changing or terminating the contract depending on the change or withdrawal of the offer or on separate grounds.

In our life we often have to deal with expressions, words, names, the meaning of which is unknown to us. Well, for example: what does “not a public offer” mean? But this expression occurs regularly in billboards or in blocks with advertising on TV.

Getting to know the concept of an offer

Offer in Latin means "offer". With the help of a public offer, it is proposed to conclude transactions, sell, supply or provide services. At the same time, any interested person can become a buyer of goods, services, etc. A typical example of a public offer is an advertisement listing all the conditions of the supplier of the offered goods, services, etc. As a rule, in a public offer, potential customers are approached by companies, urging them to conclude contracts indicating prices for goods or services, as well as delivery times.

So what is not a public offer?

This phrase from advertising projects can be regarded as an attempt by the advertiser to take measures of its own safety from disgruntled customers. We are talking about the fact that advertising often uses methods to attract customers by the type of " free cheese”, which is usually a marketing ploy. Simply put, not everyone can take advantage of the promised favorable conditions that were mentioned in the advertisement. That is, the offer (proposal) is not available to the general public.

To make it clearer, let's look at examples.

The bank came up with an advertising offer for a loan with an annual rate of 8%, but in reality only customers of this bank with an open account can use it.
Advertising offers the purchase of a product that has a 70% discount. There may be many people who wish, but only those customers who have already made a purchase at this outlet for a certain amount this month have the right to purchase products.

The seller (offer) tries to provide the most accurate and truthful information, but at the same time can make changes to the offer without the need to notify potential customers/buyers about it.

Small or large changes that the offeror does not notify in a timely manner may come as a surprise and confusion to the audience.

If you are attracted advertisement, and you decide to purchase the proposed product only on the basis of advertising information, you need to contact the seller and clarify all the information so as not to get into a mess. Good luck with your offers and purchases!

Instruction

An offer can be made both in writing and orally. There is also a public view of the document, that is, the display of samples of goods in its places.

When using a written form, it is drawn up in free form on company letterhead . In practice, the following drafting of an offer is more often used: in the upper right corner it is necessary to write the addressee, for example, Ivan Ivanov, Head of Vostok LLC. Next, you need to write “Offer” in the bottom center. You can also specify the serial number of the document.

Then comes the main text, namely commercial. The text may be as follows: LLC "Siberia" offers you to conclude a contract of sale on the following terms ... ".

After that, very important information, both for you and for your buyer. Cooperation depends on the conditions of the conclusion of the contract. First you need to write the name of the product. It will be good if you indicate the number according to GOST, for example, timber (GOST 8486-86). Next, you should indicate the price of the goods, and preferably each unit, for example, 5000 rubles per 1 m3.

Then specify the terms of delivery, that is, whose vehicle the goods are exported. Important information will be the payment terms. Some organizations may delay for a longer period, and some require 100% prepayment. Also indicate how the payment is made: non-cash and cash.

In the offer you can also indicate the response time, for example, "We expect your response before January 01, 2012." This document must be signed by the head of the organization.

How to title a document?

Everyone calls the contract differently:

Public offer;
Retail sale and purchase agreement;
Terms of sale;
Sale rules, etc.

The Civil Code establishes that the contract is interpreted on the basis of its content, and not the name. Therefore, in fact, you can name the documents whatever you like. As long as its content is consistent with the law and the goals set.

It seems to us that the name used by one online electronics store is the most successful and clear: PUBLIC OFFER of __ LLC (OFFER of _ LLC ON CONCLUDING RETAIL PURCHASE AND SALE AGREEMENT BY REMOTE METHOD)

Terms and Definitions

This section is simply ignored by many companies. However, in some cases it is simply necessary and allows avoiding ambiguity or ambiguous interpretation of the terms of the contract. It is especially important if you are describing complex system work with the Buyer or trade in a special (unusual) product.

It would not be superfluous to indicate the interpretation of such terms as: Goods, Order, Buyer, Seller, Delivery person.

This is how, for example, this section looks in the offer of one online clothing store:

In this offer, unless the context requires otherwise, the following terms have the following meanings and are an integral part of it:

Salesman- OOO "_"

Buyer- any individual who accepted the public offer on the terms of this offer.

Online store- the official online store of the Seller ___, located at the Internet address ___. Within the framework of this agreement, the concepts of the Internet store and the Store, as well as the Internet address _____.

Product- the object of the agreement of the parties, the list of assortment items presented in the official online store.

Selling Rules- Rules for the sale of goods in the online store ___ published in the "Service and Assistance" section, paragraph "Rules of Sale" _______________.

Subject of the contract

In this section, you should clearly define what the contract will be about (what the parties agreed to).

For example:

The Seller undertakes to sell, and the Buyer undertakes to accept and pay for the Goods at the prices indicated in the description of the Goods on the relevant page of the Seller's Website, on the terms of this Offer, the current version of which is posted on the Seller's Website.

The Seller transfers, and the Buyer accepts and pays for the goods on the terms of this Agreement.

Acceptance (acceptance) of an offer

Absolutely correct:

1.1. A person who agrees with the terms of this Offer and all its annexes set out below has the opportunity to conclude a retail sale and purchase agreement for the Goods with the Seller, the description of which is presented on the Site. At the same time, in accordance with paragraph 3 of Art. 438, Art. 493 of the Civil Code of the Russian Federation, and clause 20 of the Rules for Distance Selling, and taking into account the fact that it is possible to reliably identify the person who is the Buyer, it is possible only after the said person takes actions aimed at paying for the Goods, the moment the specified person concludes a retail sale contract with the Seller on the terms set forth in this Offer, depends on the conditions under which the Buyer agrees to purchase the Goods:

1.1.1. in the case of the purchase of the Goods on the terms of advance payment - from the moment the Seller receives the relevant message of the Buyer's intention to purchase the Goods, accompanied by actions aimed at paying for the Goods;

1.1.2 in case of payment for the Goods upon receipt from the Seller or courier service- from the moment the Seller/Courier Service issues to the Buyer a cash or sales receipt or other document confirming payment for the Goods. Payment for the Goods and delivery cash receipt(other document) is made at the time of transfer of the Goods from the Seller/Courier Service to the Buyer;

Possible variant:

The acceptance of this offer (agreement) is the execution by the Buyer of an order for the Goods in accordance with the terms of this offer.

Wrong option:

The order is formed on the basis of information provided by the Client by phones _, or through the website __.

Considering that in the terms of the last contract there is no concept of "Order", and it is not indicated at what point the terms of the Contract are accepted, it is impossible to recognize such a document as a public offer.

Return policy

More than 90% of all online stores prescribe the return policy. But they do it differently.

For example:

The buyer has the right to refuse the goods at any time before its transfer, at the time of transfer of the goods by the courier, and after the transfer of the goods - within 30 days.

Ways to return goods:

Russian Post.The return is carried out at the address: LLC "__. The buyer sends the return by a parcel with a declared value, without cash on delivery. Parcels sent by cash on delivery are not accepted for return. A completed return application must be included in the parcel. In one of The buyer independently returns the goods to one of the listed points of issue and fills out an application in the presence of an employee of the point of issue (the application form is provided to the buyer at the point of issue).

Refund methods:

in cash. This method of return is possible when returning the goods to one of the points of issue with a passport and a completed application for return (provided at the point of issue).

Bank transaction. To do this, you need to fill out a return application. , fill in the required details and send the completed application to e-mail. address: _

Name of the bank
Checking account
Correspondent account
TIN of the bank
Bank BIC
Personal account or card number

by postal order. To do this, you need to fill out a return application, , indicate the full surname, name and patronymic of the customer and the postal address with an index, send the completed application to e-mail. address______.

The most common mistake is an indication that distance trading is valid "List of goods good quality non-exchangeable and non-refundable. Unfortunately, it is not. And from the point of view of the law, if the sale was remote, the consumer really has the right to return almost any product, including those from the List.

Personal data

Unfortunately, the issues of processing and protection of personal data are bypassed by online stores. But this is fraught with fines, and Roskomnadzor has already turned its attention to the field of e-commerce.

It is better to play it safe and reflect this moment in the contract, although it looks cumbersome:

By accepting this offer, the Buyer agrees and authorizes LLC "_", legal address: ______, OGRN ___ (hereinafter referred to as the Operator) to process his personal data, including last name, first name, patronymic, date of birth, gender, place of work and position, postal address; home, work, mobile phones, e-mail address, including collection, systematization, accumulation, storage, clarification (updating, changing), use, distribution (including transfer in the territory Russian Federation and cross-border transfer), depersonalization, blocking, destruction of personal data, as well as their transfer to the Operator’s counterparties for the purpose of further processing (including collection, systematization, accumulation, storage, clarification (updating, changing), use, distribution (including transfer to the territory Russian Federation and cross-border transfer), depersonalization, blocking, destruction of personal data) to conduct research aimed at improving the quality of services, to conduct marketing programs, statistical research, as well as to promote services on the market by making direct contacts with the Buyer using various means communications, including but not limited to: mailing list, Email, telephone, facsimile, Internet. The Buyer agrees and allows the Operator and the Operator's counterparties to process the Buyer's personal data, using automated systems database management, as well as other software tools specially developed on behalf of the Operator. Work with such systems is carried out according to the algorithm prescribed by the operator (collection, systematization, accumulation, storage, refinement, use, blocking, destruction). The processing methods used (including, but not limited to): automatic verification of postal codes with the code base, automatic verification of the spelling of street names of settlements, automatic verification of the validity of VIN and state registration marks, clarification of data with the Buyer by telephone, postal communication with the Buyer or using contact via the Internet, segmentation of the base according to specified criteria. The Buyer agrees that, if it is necessary to achieve the goals specified in this offer, his personal data received by the Operator may be transferred to third parties to whom the Operator may entrust the processing of the Buyer's personal data on the basis of an agreement concluded with such persons, if subject to compliance with the requirements of the legislation of the Russian Federation on ensuring by such third parties the confidentiality of personal data and the security of personal data during their processing. When transferring the specified data of the Buyer, the Operator warns the persons receiving the personal data of the Buyer that these data are confidential and can only be used for the purposes for which they are reported, and requires these persons to comply with this rule. The Buyer has the right to request from the Operator full information about his personal data, their processing and use, as well as to demand the exclusion or correction / addition of incorrect or incomplete personal data by sending a corresponding written request addressed to the Operator at the postal address. The Buyer's consent to the processing of his personal data is indefinite and may be revoked by the Buyer sending a written application to the Operator's postal address.

Also indicate how personal data is processed (what you will do with it).

Delivery of goods

This is a particularly important point. It can be expressed as follows:

The conditions for the Delivery of the Goods, namely the delivery time and cost, are established by the Seller and brought to the attention of the Buyer using the Site. Delivery of the Goods can be carried out by the Seller with the involvement of Courier Services.

Delivery of the Goods to the Buyer is carried out within the terms orally agreed by the Parties upon confirmation of the order by the Seller's employee and the conditions set forth in the Rules of Sale.

At courier delivery of the Goods, the Client puts his/her signature in the Delivery register against those positions of the Goods that the Client has purchased. This signature serves as confirmation that the Client has no complaints about the order picking, quantity and appearance Goods.

Order of payment for goods:

Specify in what ways and in what order payment is possible. For example :

4.1. The fulfillment by the Buyer of the obligation to pay for the Goods, as well as for the Delivery, if the Buyer orders the corresponding service, is possible in the following ways:

4.1.1. by making a transaction to pay for the Goods using the Card in the manner prescribed by the current legislation of the Russian Federation and the agreement between credit institution that issued the Card and the Buyer;

4.1.2. Cash payment in cash at the cash desk of one of the centers mobile communications Trading network the Seller upon the actual transfer of the Goods to the Buyer, in the event that the Buyer independently receives the Goods from the Seller in the mobile communication center of the Seller's Trading Network chosen by him.

4.1.3. Payment in cash to the Seller upon conclusion of a retail sale and purchase agreement in accordance with clause 1.4.2. of this Offer, and if the Seller engages the Courier Service, acting on behalf and at the expense of the Seller, to the representative of the Courier Service, in compliance with the requirements of the current legislation of the Russian Federation.

4.1.4. By performing transactions with electronic money in accordance with federal law No. 161-FZ of June 27, 2011 "On the National Payment System".

The offer must also include:

Rights and obligations of the parties;
Dispute resolution procedure;
Force majeure circumstances.