Offer, offer... What is it? Many people, listening to the radio or reading magazines, come across this word. But not everyone understands its meaning. And therefore, your attention is invited to an article that tells in detail about the nature of the offer, its types, proper execution, and also about what happens for non-fulfillment of the points specified in this document.
Offer - what kind of "beast" is this? In simple words
Simply put, an offer is a contract of sale. But the contract is not quite ordinary. In an offer, unlike a contract, only the most essential conditions for its conclusion are unilaterally prescribed. Whereas the contract contains very complete information about the services provided or the goods offered and is concluded by both parties.
However, if in Russia and European countries the essential conditions of the offer are prescribed without fail, then Anglo-American law says that if the consumer has a clear idea of the terms of the transaction, then these conditions may not be reflected on paper.
Another feature of such an agreement is that it enters into force immediately after the consent of the consumer, his acceptance, is received. In the same Anglo-American law, the unspoken "rule of the mailbox" operates. It consists in the following: an offer can be considered concluded when the consent to it is dropped directly into the mailbox of the person who submitted this offer.
By the way, silence, which is considered to be a sign of consent, is not considered consent in the case of an offer. That is, if the document itself is presented in writing, then the consent must be drawn up accordingly. However, due to the fact that different countries have slightly different traditions and laws, most often the offer clearly indicates the period during which an agreement of this type can be concluded.
How to make an offer?
Naturally, there are generally accepted rules for drawing up an offer, prescribed in the legislative framework. They are guided by all individuals and legal entities constituting an agreement of this type.
- Immediately before drawing up an offer, you need to thoroughly consider all the conditions. It is better to start with a draft, put the necessary marks on it, and then just proceed.
- In general, according to the type of preparation of the offer, there is a written and oral one. When using the first option, the offer can be presented both on the letterhead of the company, and in any form. Very often this is done: a blank sheet of paper / form is taken, the addressee is indicated in the upper right corner, and at the very bottom of the sheet, in the center, write “Offer”.
- Next is written, in fact, the commercial proposal itself.
- Then, which is a very important point, the terms of the contract are indicated. It is on them that the final result depends. If this is some kind of service, then you need to describe its merits and why it is needed by the person who is offered the offer. If this is a product, then its name must be indicated (preferably according to GOST) and the main characteristics.
- After everything written in the document, the conditions for the provision of the service / delivery of the goods and the methods of payment are prescribed - non-cash or cash.
Main types of offers
Many believe that the offer is only public. This comes from the very frequent use in the media of the phrase "is not a public offer." This type of contract will be discussed later. People close to business and sales distinguish three more types of offers:
I would like to say a few words about the irrevocable offer, or rather about how the issuing companies use it. This is done in order to enable the shareholder to redeem the value of the security he has acquired.
With the help of irrevocable offers, by the way, both the issuer and the shareholder can control the value of shares and possible risks - interest and credit, respectively. The date of the bond offer is negotiated at the initial stage and then does not change. The cost of the bond and the procedure for its redemption are determined by the investor and the issuer.
Public offer rules
The public offer differs significantly from the previous ones. It can be distinguished from the flow of documents according to three main features:
- in an offer of this type, all essential conditions are included without fail;
- persons interested in concluding such an agreement must understand what responsibility they take;
- the person signing the offer fully agrees with all its conditions, without discussing them.
What does not apply to a public offer?
In the laws of almost all countries, advertising of any products and services is not considered a public offer, as it does not contain specific proposals. If there are any, then such advertising is recognized as an offer and, according to the law, is valid for two months from the date of its creation (however, the advertiser himself can set any period of validity of the offer). With such a formulation of the question, an agreement of this type can be concluded, but all responsibility for its execution lies with the advertiser / seller.
Once again about acceptance
As already mentioned, acceptance is the consent of a potential buyer of a product / service. Acceptance can be presented both on paper and orally. Acceptance is also considered to be any action on the part of the buyer of the goods/services that partially meets the terms of the offer.
But legally, an offer can be concluded if the parties fulfill all the clauses of the offer in full. As for any seals and stamps, they are affixed only at the request of the parties.
What are violations of a public offer?
In general, any offer, including a public offer, is interpreted by the laws of different countries as a legal document. And therefore, for violation or any non-compliance with the conditions specified in the public offer, it is subject to rather severe sanctions.
Violation of the offer may be a banal overestimation of the cost of goods. That is, if goods are taken at the retail premises at the same price, and a check with a completely different price breaks through at the checkout, then the buyer has the right to contact the store administration in order to resolve the situation.
In this case, the probability of selling the goods at the original cost is very high.
If it “didn’t grow together” with the management of the store, then there is an option to report a violation by making an appropriate entry in the Book of Complaints and Suggestions. In principle, you can go even further: take a photo of the price tag with the declared price, attach a cashier's check to it with the very statement about the violation of the Rules of Trade and send it all to Rospotrebnadzor.
But, as a rule, such drastic measures do not reach: the administration meets halfway, and the goods are sold at the original price. With expensive goods, the situation is a little more complicated. This is where the case could go to court. In most cases, representatives of Themis take the side of the consumer and satisfy the claim. Here the deceived buyer wins doubly: not only is he returned the cost difference of the goods, they also compensate for moral damage in material terms.
Conclusion
So, with knowledge of the signs and rules of a public offer, you can always defend your rights in any organization. By the way, it also happens that persons who have violated the contract of a public offer begin to "swing rights" and threaten. If such things happen, it is only from impotence: the offending side understands that it is not right, and indulges in "everything bad". There is no need to be afraid of this: the law will be on your side in any case, because the main rule of trade and the provision of services is that the client is always right.
Except, of course, in cases where any conditions in favor of the seller of goods / services are clearly and very clearly spelled out in the offer agreement.
In contact with
Offer - an offer addressed to a certain or indefinite number of persons, containing all the essential terms of the proposed transaction and clearly expressing the intention of the initiator to conclude an agreement with the addressee. It is not easy to understand such a capacious definition of this term, so we will consider what an offer is in simple words, what are its types, why it is incorrect to say “offer agreement” and, finally, what does the phrase “is not a public offer”, which can often be found on advertising goods and services, modestly lurking somewhere in the lower corner of an advertising poster?
Offer. What is it in simple terms? Real life example
The ancestor of the word "offer" is the Latin "offero", which means "offer". At first, this word migrated to the French language, transforming into “offrir” - “to bid, to transfer”. The Russians, on the other hand, borrowed this term from the French in the 19th century and gave it the meaning of “an offer to make a deal.”
In simple terms, an offer is a request from a supplier (contractor, seller) sent in writing or orally to a specific person or group of persons with a proposal to purchase goods or services. Moreover, the one who addresses you with such an offer (he is called the offeror) undertakes to conclude an agreement subject to the consent of the addressee, even if verbal. The addressee (to whom the proposal is sent) is also called the acceptor, and his consent is called the acceptor.
An offer, for example, will be a business letter (commercial offer) from one legal entity or individual entrepreneur to another with a proposal to buy a consignment of goods in the amount of such and such, at the price of such and such, with delivery at that time and payment terms (immediately or with ). The acceptance will be a counter letter with the acceptance of this offer or a phone call with the consent of the transaction (in the form of a contract).
An even simpler example is the offer you made to your neighbor in the vestibule to buy light bulbs in turn after they have burned out. If the neighbor agrees (he accepted your offer), then your offer has successfully ended with an oral or written agreement (agreement) between you.
A real life example can be seen below.
Note! The silence of the acceptor is not recognized as his automatic consent to accepting the offer, unless other conditions are specified in the text of such an offer (Article 438 of the Civil Code of the Russian Federation).
Any offer has its own validity period - the time that is given to the acceptor to make a decision and give an answer.
The offer must comply with the following principles:
- targeting, i.e. orientation to a certain circle of people;
- materiality - the mandatory content in the text of the document of the essential conditions on which the transaction will be concluded. In our example, essential conditions are unambiguous information about the cost of goods, their quantity, conditions and terms of delivery;
- certainty - it should clearly follow from the text of the appeal that the offeror intends to conclude an agreement on the proposed terms.
During the period allotted to the addressee for making a decision, the offer cannot be withdrawn (Article 436 of the Civil Code of the Russian Federation). But if the possibility of early withdrawal is spelled out in the text of the proposal itself, then early withdrawal will be possible.
"Contract offer". Is it correct to say so?
Sometimes in the business environment you can hear the phrase "offer agreement". It is important to know that the offer itself is not considered a contract. This is only its threshold, a preliminary invitation to cooperate - nothing more. The contract itself is concluded later, but on the terms that were stipulated in the offer.
The official interpretation of the term, as well as the main nuances of its application in practice, are prescribed in the civil legislation of the Russian Federation (Article 435 of the Civil Code of the Russian Federation) and are regulated by it.
Samples for review and download
You can view and download a sample offer (a ready-made form to fill out) below.
Offer types
There are 4 main types of offer:
1. Free - the offer is sent to several persons who are consumers of a certain group of goods. Such an offer is always aimed not at sales, but at studying demand in a certain market segment. An example is a mailing from an Internet provider to its customers with information about new additional services and tariff plans.
2. Public - for a wide range of people (but more on that later).
3. Solid. Here, the offer is directed to a specific citizen who has every chance of becoming a client of the seller-offer. An example is sending information to depositors about preferential lending programs for existing bank customers.
4. Irrevocable. Aimed at anyone who wishes to conclude a contract. In this case, the offeror cannot cancel the offer he made, that is, withdraw it. This type of offer is most often found in the sphere of securities circulation. Example: a large company that issued shares offered to buy back these securities from its shareholders.
The form of the offer may be oral or written.
Public offer
What is a public offer? This is a proposal to conclude an agreement, which is addressed to an indefinite circle of persons. Moreover, the number of such addressees is also unknown in advance.
The simplest example of this type of offer is an ordinary price tag in any store. The store, represented by its director and sellers, offers you to buy goods for the price indicated in the price tag, and cannot refuse you if you have agreed to purchase this goods. You say that you want to buy it and give the cashier the money, i.e. make an acceptance (accept the offer), and at the same time become an acceptor.
An important condition of the public offer is that anyone can use the offer.
The very word "public" says a lot. For example, the fact that such offers are distributed, as a rule, through sources with a wide range of users - the media, Internet resources, print media, etc.
A public offer can be expressed not only orally or in writing, but also in specific actions of the seller. This includes merchandise display, catalog distribution, various demonstrations and tastings, and even restaurant menus. All these actions will be considered as an offer even if the trader does not indicate the price of the goods.
Another example of a public offer is the information posted on the web page of an online store:
- assortment of goods;
- their cost;
- terms of delivery and payment;
- seller's warranty.
BUT if the disseminated information indicates that only a certain segment of the population can use the special offer, or the same online store does not indicate the delivery procedure or the range of its guarantees, then such an offer will not be considered a public offer. This is just a call for cooperation and nothing more. Thus, a public offer is only if the offer of goods or services contains essential conditions! (Article 437 of the Civil Code of the Russian Federation)
The phrase "are not a public offer" - what does it mean?
Strictly speaking, an advertisement, unless it contains specific conditions for the sale of a product or service, is not recognized as an offer. This is understandable, because the main goal of any advertising is to profitably present your product and thereby outshine competitors. Therefore, sometimes (or rather, often) in advertising brochures is silent about the true terms of the transaction. For example, "famous" loans at 0%, which, in fact, are not such in most cases (Why? Read).
In some brochures and on banners, you can find the phrase "prices are not a public offer." What does it mean? It's simple - the seller simply leaves himself the opportunity to retreat. It is unprofitable for any advertiser to have his advertisement classified as an offer, because in this case he is obliged to sell the goods exclusively at the declared cost and with the declared characteristics. Therefore, the advertisement clearly indicates that this offer is not a public offer or reservations are made. For example, a car ad may state that the offer is only available in a certain configuration.
As a rule, advertising is an invitation to an offer, but again, we add, if there are essential conditions in it, it is a public offer, i.e. the seller advertising the product is obliged to sell it on the terms specified in the advertisement. Otherwise, he will have problems with the law, in other words, he can be sued for unfair advertising. Incidentally, according to Art. 11 of the Federal Law "On Advertising", if an advertisement is recognized in accordance with the Civil Code of the Russian Federation as an offer, then such an offer is valid for two months from the date of distribution of the advertisement, provided that it does not specify a different period.
Thus, an offer is an invitation to cooperation, which entails the conclusion of an appropriate contract or agreement. How this agreement will be concluded - orally or in writing - does not matter. And if at the checkout of a store they try to sell you a product at a cost that exceeds the price tag, be aware that this is a violation of the public offer agreement and is punishable by law.
We very often hear the words “offer”, “public offer”, “is not a public offer”, but we do not always understand their meaning. In fact, these concepts are not so far from us. Imagine the situation: a guy offers a girl a "hand and heart" and makes her an official proposal to marry him. But he said this not in jest between times, but in observance of all customs and traditions. The girl has time to think about what to answer him, but the guy can no longer refuse his words, he has assumed certain obligations, he can no longer change his mind. This can be called an offer, only this concept is more often still applicable to business relations, and not personal ones. The legal concept of an offer is contained in the Civil Code of the Russian Federation. This is an offer by the offeror (some person) to the acceptor (a certain person, a limited or unlimited circle of persons) to conclude a deal (agreement) indicating all the necessary conditions for this. ( )
Public offer
« What then is a public offer? - you ask. The legal definition of a public offer is also enshrined in the Civil Code. According to a public offer is an offer of a product in its advertising, catalogs and descriptions addressed to an indefinite circle of persons, if it contains all the essential terms of the retail sale contract. From this definition, we can distinguish two features inherent in a public offer:
The public offer must be addressed to an indefinite circle of persons;
It specifies the main terms of the contract and expresses the intention to conclude a contract with everyone who responds to the offer.
Let's take an example. The Internet provider makes a mass mailing with an offer to provide its services, while indicating in this mailing all the main conditions of the future transaction (tariffs, discounts, speed, contact in case of malfunctions, etc.). In this case, such an offer will be considered a public offer. In any case, he is obliged to enter into a contractual relationship and provide the Internet services described in the newsletter to all those who respond to the offer.
Public offer in retail sale
On the other hand, if the goods are displayed on the shelves, showcases, then this is recognized as a public offer, regardless of the indication of the price and other essential terms of the retail sale contract, with the only exception when the seller has independently determined that the goods are not subject to sale. It is worth mentioning one more essential condition: a public offer can only be called an offer that at a particular moment in time can be accepted by only one person. For example, selling drinks through vending machines. If the machine is turned on and filled with goods, then there is a public offer, and if suddenly a line to the machine has formed or the goods have run out, then the offer is temporarily withdrawn and a certain time must pass, which the buyer must wait before the offer is renewed. It is for this reason that the Civil Code considers advertising and other offers addressed to an indefinite circle of persons only as an invitation to an offer. There is an exception to this rule. It refers specifically to the contract of retail sale. The offer of goods in the catalog, advertising addressed to an indefinite circle of persons are recognized as a public offer, but only if they contain all the essential terms of the contract. ( ). From this we can conclude that in this area such a proposal to conclude an agreement, which can be accepted by an indefinite circle of persons, can be considered a public offer. It may happen that the seller does not have the required amount of goods, and he will not be able to execute many concluded transactions, in which case he will suffer losses that will be associated with the reimbursement of losses to the buyer.
Confusion in concepts
Unfortunately, many people confuse a public offer with advertising. These are different things. Advertising and similar offers are not a public offer. It does not contain the usual specific conditions for a deal to be made. She has a slightly different goal - to present her product in a more favorable light than competitors. Some write on product brochures that This offer does not constitute a public offer, but, by and large, in this case, this proposal does not carry any semantic load. The same can be said about the various offers on the sites. The information on the site is also not a public offer, since websites often do not specify specific conditions, for example, regarding the cost of products, the timing of the transfer of goods, etc., only a general description of the product and its characteristics is given, with an appeal to the client to come to the store and make a real deal.
Public offer agreement
The conclusion of a public offer agreement has a certain procedure. First, one of the parties sends the second party a proposal to conclude an agreement, and the second party, in turn, accepts this proposal (accepts). In order for the contract to be concluded, an unconditional acceptance is required, but in the case when an offer is accepted with reservations, it is considered that the acceptor sends a counter offer to the offeror and the latter can accept it, and then the contract will be concluded or send its terms again. (
on the terms described therein. It has an expiration date, and it must be indicated. The refusal of the initiator to conclude an agreement on the proposed conditions before the expiration of the announced period of validity is unacceptable. The initiator is not entitled to change its content (except to increase the discount, reducing the cost for the sake of increasing attractiveness) before receiving a response from the client within the specified period. It is possible to correct the proposal after communication with the client, taking into account the proposals of the latter. In the Civil Code of the Russian Federation, an offer is formulated as a proposal by one party to consider itself a contractor under an agreement with the addressee.
Mandatory clauses of the offer
Describing the offer in simple terms, it is worth mentioning its mandatory points, without which it loses its meaning. They are listed in Art. 435-437 of the Civil Code of the Russian Federation.
- The conditions essential for the conclusion of the contract are the subject matter of the contract, its term, price, terms of payment and performance in general.
- A specific offer for a product or service, indicating the type, model, qualification, complexity and other exact parameters, plus cost.
- A clearly stated intention of the offeror to enter into a contract.
- Targeting. The offer must be addressed to a specific organization. The exception is a public offer, which can be used by anyone.
- Validity. On the basis of an offer valid until July 2017, it is not possible to conclude a contract in September - the conditions proposed earlier by the offeror will no longer be valid.
An example is a contract already drawn up and signed by the offeror with annexes. In the business environment, there are often cases when cooperation begins without an official acceptance of the exposed offer.
What is the offer like?
In business, it is associated with a commercial proposal and has the following types.
Public and non-public offer
The fundamental difference lies in the specification of the addressee. Oriented to the masses (promoted through advertising in the media and on TV, shop windows, catalogs with goods) was called public. An advertisement can be considered an offer if it contains conditions that are essential for concluding a contract or making a purchase - the specific name of the product, its cost and the validity period of the offer. It is not the same as a contract. To obtain the goods or services described in it, it is necessary to conclude a contract with the terms, cost, rights and obligations of the parties indicated in it.
An offer made for a specific client is considered non-public. The conditions offered to him will not suit others. In such an offer, the full name and address of the client must be indicated. Its content is not publicly disclosed, is not available to the general public and is protected by the law on personal data.
Other types of offer
In addition to public and non-public, there are the following types of offer.
- Irrevocable. As the name implies, its terms cannot be revoked or changed. Expires upon expiration.
- Solid. Contains specific, detailed terms and conditions and is focused on a specific client. But, in case of refusal on it or disregard, it can be offered to other potential customers. Usually this is a proposal for cooperation for a number of companies in the same field of activity.
- Free. It contains a proposal for cooperation, has no time frame and does not impose strict obligations on the offeror.
Actions of the acceptor after receiving the letter of offer
In business, it is customary to respond to a commercial offer - independently or in response to calls and letters from the offeror. The answer is preceded by the following steps.
- Studying. Comparison of conditions, prices, terms, quality level, identification of benefits and negative aspects.
- Evaluation of the real benefits of cooperation. At this stage, the acceptor may have his own ideas. If he voiced them, it means that he was interested in the original proposal in principle.
- Drawing up a protocol of disagreements. A potential client has the right to reflect in it everything that does not suit him. This is done in order to correct the offer and obtain more favorable conditions.
- Sending a signed contract with a link to the protocol of disagreements or a counter offer. Oral communication is also possible to discuss cooperation in the future.
Until the moment of signing the contract, the offer - initial and counter - has the character of a preliminary agreement. If the second is accepted for consideration, and the first is withdrawn, then a corresponding notification is sent about this. The submitted proposals are considered promptly. Delaying negotiations to agree on the terms of cooperation is punishable in accordance with Art. 507 of the Civil Code of the Russian Federation.
What is an offer contract?
Unlike a regular commercial offer, an offer agreement is a contract filled out and signed unilaterally. It details all the conditions, indicates the type of transaction, its cost, start and end dates, and other significant conditions. A potential client only needs to sign, giving a start to cooperation. Such options are practiced in the provision of services to the population. A company representative communicates with a potential client, having in his hands a contract drawn up and signed by the management in advance with all the appendices.
A sample offer agreement should be drawn up in the same way as a regular contract and is considered as an easier way to conclude it - without preliminary negotiations.
- A set of sections and paragraphs strictly in accordance with the law.
- Accounting for the requirements of the Federal Tax Service and the bank in the wording.
- The optimal compromise for the parties.
In this vein, companies cooperate that are partners from year to year and regularly update contracts.
A new potential client can only be sent a draft contract with an offer. The latter is not just a business letter with a proposal to work together, but accurate calculations, conclusions about the client's benefit, and a clear economic effect. You need to be prepared to make changes to the original conditions.
A public offer is a proposal by a legal or natural person to conclude a certain proposition addressed to specific subjects, clearly expressing the intentions of this legal or natural person who offers a product or service.
Any contract must be concluded in the following order. One party sends another proposal to conclude an agreement (or offer), and the other accepts this proposal or refuses. Sometimes these actions can occur at the same time. Then the parties get together and sign an agreement, which already means agreement to the proposal.
But this is not always the case. Therefore, there is a time gap between acceptance and offer.
Offer features:
It must be certain;
Must show the orientation of the person to conclude the contract;
A person who has performed the necessary actions to accept this type of contract (for example, a person who sent an application for receiving a particular product or service) may require the offeror to perform it
A public offer contains only the will of one party submitting the offer. Therefore, the answer of the opponent is of decisive importance. In order for the contract to be considered concluded, the absolute consent of this person is required. Otherwise, it will have no effect.
The contract of the offer for the provision of services can be "accepted" by a person. Acceptance is a positive reaction of a person to an offer addressed to him, this is an answer that he has accepted it. It can be unconditional or complete.
Silence cannot be taken as acceptance, except as provided by law. It happens that previously held business relations between the parties are taken into account. Acceptance is also considered to be the performance by the person who received the offer of the actions specified in (this may be the unloading of goods, the performance of various works, the provision of services, the payment of any amount of money, etc.).
The performance of the actions described by the public offer under acceptance is considered sufficient to determine the contract as concluded. Thus, the payment for the service (or the fulfillment of other conditions of the offer) together with the text of the offer agreement are recognized as a legally concluded agreement. There are usually no seals and signatures on the offer, but one of the parties may require this for accounting purposes.
Example of an offer: advertising, as well as other offers addressed to a not exactly defined circle of people. The contract with the proposal must contain all the essential characteristics. In addition, it must clearly show the will of the person offering the service. Such an offer is also prescribed. It is valid for two months from the beginning of the distribution of promotions, unless the offer provides for another period.
