In commercial practice, an offer is understood as a written offer by the seller, sent to a potential buyer, to sell a consignment of goods on conditions determined by the seller.

An offer (from Latin offero “I offer”) is a proposal of a person (natural or legal) to conclude a civil law contract, an offer is an offer addressed to one or several specific persons, which is quite definite and expresses the intention of the person who made the offer to consider himself as having entered into agreement with the addressee who will accept the proposal (Civil Code Russian Federation. Part one: No. 51-FZ dated November 30, 1994. - As amended. dated 06.12.2007.-St. 435)

The offer is different advertisement or a prospectus containing specific conditions, for example, indicating the cost of products, the timing of the transfer of goods and the communication of other commercial information necessary and sufficient, in the opinion of the offeror, in order to interest a potential customer or buyer.

The offer is also sometimes used for the purpose of a secret division of the market between large firms, such an offer in international trade called protective, in fact, it acts as a source of information in the form of a request from buyers to send an offer.

Offer types

AT international practice There are two types of offers: firm and free.

Firm offer- this is a document in which a written offer is made for the sale of a certain consignment of goods, sent by the seller to one potential buyer, indicating the period during which the seller is bound by his offer.

The term of the offer depends on the demand in the market for the product offered: the greater the demand, the shorter the term of the offer.

If the buyer agrees with all the terms of the offer, he sends the seller a written response to the offer or counter-offer, indicating his conditions and the deadline for response. If the seller agrees with all the terms of the counter-offer, he accepts it and notifies the buyer in writing. In case of disagreement, he either considers himself free from his obligations under the offer, of which he notifies the buyer in writing, or sends him a new offer, taking into account the conditions proposed by the buyer or on new conditions different from those proposed by the buyer.

Failure to receive a response from the buyer within the period specified in the offer is tantamount to his refusal to conclude a transaction on the proposed terms and releases the seller from the offer made by him.

Only after the buyer's refusal, the goods can be offered to another, but on the same conditions on which the first firm offer was issued.

The buyer's consent to the conditions set forth in such an offer is confirmed by a firm counter-offer. After confirmation (acceptance) of the counter-offer by the seller, the transaction is considered concluded.

Free offer- this is a document that can be issued for the same consignment of goods to several possible buyers. He does not bind the seller with his offer, does not set a deadline for a response.

It is advisable to limit the number of issued free offers, otherwise the market may get the impression that there are a lot of offered goods and they want to sell them as soon as possible. In essence, this is a proposal to enter into negotiations.

The buyer's consent to the terms of the offer is confirmed by a firm counter-offer, which sets out its terms. If the seller accepts the counter-offer and notifies the buyer in writing, the transaction is considered concluded, and the parties are obliged to fulfill all the conditions set forth in the counter-offer. Until the contract is concluded, the offer may be withdrawn by the seller, if the offer does not indicate that it is unrequited, until the buyer has sent confirmation of acceptance. If the acknowledgment of acceptance is sent late, the acceptance may remain in effect if the seller is satisfied and he will notify the buyer in writing.

Distinctive features of the offer

Under Russian law, an offer must:

• be sufficiently specific;
• express the intention of the person to consider himself or herself as having entered into an agreement with the addressee;
• contain all the essential terms of the contract.

Offer features:

The offer must contain the essential terms of the contract

The offer binds the person who sent it from the moment it is received by the addressee.

If the notice of withdrawal of the offer was received earlier or simultaneously with the offer itself, the offer shall be deemed not received.

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.

Public offer. Signs of a public offer.

Offer acceptance

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

The acceptance must be complete and unconditional.

Silence is not an acceptance, unless otherwise provided by law, custom business turnover or from previous business relations sides.

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 by law, other legal acts or not specified in the offer.

It is also worth noting that:

- If the notice of withdrawal of acceptance was received by the person who sent the offer before the acceptance or simultaneously with it, the acceptance is considered not received.

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.

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 or other legal acts, and if such a period is not established, within the time normally necessary for this.

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

In cases where a timely notice of acceptance is received late, the acceptance is not considered late unless the party that sent the offer immediately notifies the other party of the receipt of the late acceptance.

If the party that sent the offer immediately notifies the other party of the acceptance of its acceptance received late, the contract is considered concluded.

The answer about consent to conclude a contract on other terms than proposed in the offer is not an acceptance, such a response is recognized as a refusal of acceptance and at the same time a new offer.

If the contract does not indicate the place of its conclusion, the contract is recognized as concluded at the place of residence of the citizen or the location of the legal entity that sent the offer.

Mandatory conclusion of a civil law contract

1. In cases where, in accordance with the Civil Code of the Russian Federation or other laws, it is mandatory for the party to which the offer (draft agreement) is sent to conclude an agreement, this party must send the other party a notice of acceptance, or refusal of acceptance, or acceptance of the offer on other terms (minutes of disagreement to the draft contract) within thirty days from the date of receipt of the offer.

The party that sent the offer and received from the party for which the conclusion of the contract is obligatory, a notice of its acceptance on other terms (the protocol of disagreements to the draft contract), has the right to transfer the disagreements that arose during the conclusion of the contract to the court within thirty days from the date of receipt of such notice or expiration of the acceptance period.

2. In cases where, in accordance with the Civil Code of the Russian Federation or other laws, the conclusion of an agreement is obligatory for the party that sent the offer (draft agreement), and a protocol of disagreements to the draft agreement will be sent to it within thirty days, this party is obliged within thirty days from on the day of receipt of the protocol of disagreements, notify the other party of the acceptance of the agreement in its wording or of the rejection of the protocol of disagreements.

If the protocol of disagreements is rejected or the notice of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to refer the disagreements that arose during the conclusion of the contract to the court for consideration.

3. Rules on time limits provided for in paragraphs 1 and 2 of Article 445 Civil Code of the Russian Federation, are applied if other terms are not established by law, other legal acts or are not agreed by the parties.

4. If a party, for whom, in accordance with the Civil Code of the Russian Federation or other laws, the conclusion of an agreement is mandatory, evades its conclusion, the other party has the right to apply to the court with a demand to compel the conclusion of an agreement.

A party that unreasonably avoids concluding a contract must compensate the other party for the losses caused by this.

Examples of an offer in practice

• A legal entity is given a draft supply agreement signed by the other party with an indication that it will enter into force if it is signed within one calendar week. Such a project acts as an offer. If a legal entity signs this project for its part, sends a document expressing agreement with the project, or begins actions to fulfill the contract, this is an acceptance. To refuse the offer, you can send an appropriate notification or simply ignore it (paragraph 2 of article 408 of the Civil Code establishes that silence is not an acceptance, unless otherwise follows from the legislation or agreement of the parties). The signing of the draft agreement with the clause “signed with a protocol of disagreements” and the application of the corresponding signed protocol will be a counter offer, which the first party to the agreement may accept or reject.
• One company issues an invoice to another company for payment for goods (works or services). The second company pays for goods (works or services) on this invoice. The goods are delivered (or work is performed, services are provided), that the parties draw up an invoice (delivery of goods) or an act (performance of work, provision of services). In this case, the invoice will act as an offer, and its payment - as an acceptance.
• A typical public offer is the placement of goods in a store - the store sells the goods (concludes an agreement retail purchase and sale) to anyone who asks to sell this product to him - that is, expresses his willingness to buy it on the terms stated by the store.

  The public offer in relation to the contract for the provision of telecommunication services (providing access to the Internet) are the so-called Internet cards.

• In practice, we had to deal with the fact that many people use the concept of "public offer agreement". For some reason, this was especially evident in the area related to global network Internet. Put this phrase in the search and you will see that on many sites there are some “public offer agreements” for providing access to the Internet, for purchasing goods in an online store, for providing hosting services, etc.

  In addition, clients make a request - provide them with the text of the public offer agreement.

  In fact, such a contract does not exist in nature. In the term "public offer agreement" there is a usual confusion of concepts. An offer is not a contract; it is an offer by one person to another specific person to conclude an agreement. A public offer is an offer to conclude an agreement with anyone who responds to this offer (that is, an offer addressed to an indefinite circle of persons). The public offer must contain all the essential terms of such an agreement.

  It should be noted that advertising and other offers addressed to an indefinite circle of persons should be distinguished from a public offer. Unless expressly stated otherwise in such offers, they are considered only as an invitation to make offers.

• The company advertises, several other enterprises respond to it. It turns out that it is this response to advertising that is the offer. Therefore, the person who placed the advertisement is not obliged to accept this offer and may refuse those who applied for the advertisement.

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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, the reverse side should be stamped by the store and signed by 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 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 is the most common form of advertising on the web, on television, catalogs and in ordinary 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 specific item 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.

Paragraph 2 of Article 435 of the Civil Code of the Russian Federation states that the offer binds the person who sent it (the offeror) from the moment it is received by the addressee. In fact, this means that the offeror's obligations under the contract arise precisely from the moment it is received by the person to whom it is sent, and not from the moment he accepts it. If the offeror refuses to conclude the contract, then he is liable in accordance with Chapter 25 "Responsibility for breach of obligations" of the Civil Code of the Russian Federation. At the same time, it should be borne in mind that since the obligation to conclude a contract with the offeror automatically occurs from the moment the offer is received by the addressee, then up to this moment he can withdraw it. Moreover, as indicated in paragraph 2 of Article 435 of the Civil Code of the Russian Federation, if a notice of withdrawal of an offer was received earlier or simultaneously with the offer itself, then the offer is considered not received, and therefore, claims for damages cannot be made.

If the offer is received by the addressee, then the consequences of its receipt depend on whether the deadline for its acceptance is indicated in it or not.

Acceptance is the response of the person (acceptor), to whom the offer is addressed, about its acceptance. Moreover, the acceptance must be complete and unconditional.

It should be noted that according to general rule, enshrined in paragraph 2 of Article 438 of the Civil Code of the Russian Federation, silence is not an acceptance. The only exceptions are cases directly established by law (paragraph 4 of Article 468 of the Civil Code of the Russian Federation, paragraph 2 of Article 450 of the Civil Code of the Russian Federation or paragraph 2 of Article 621 of the Civil Code of the Russian Federation), as well as when silence can be recognized as an acceptance due to business customs or due to previous business relations sides.

In the general case, acceptance is the performance by the person who received the offer of actions to fulfill the conditions of the contract specified in it - the shipment of goods, the provision of services, the performance of work, the payment of the appropriate amount, etc. (Clause 3 of Article 438 of the Civil Code of the Russian Federation). The acceptor may also withdraw his acceptance, it should be borne in mind that if the notice of withdrawal of the acceptance is received by the offeror before the acceptance itself or simultaneously with it, then the acceptor's response is considered not received.

The offer received by the addressee cannot be withdrawn within the period established for its acceptance, unless otherwise specified in the offer itself or follows from the essence of the offer or the situation in which it was made, this is indicated in Article 436 of the Civil Code of the Russian Federation. That is, as a general rule, the offer is irrevocable during the period established for its acceptance, the offeror cannot withdraw it or change the terms of the contract proposed for conclusion. At the same time, if otherwise is stipulated in the offer itself, or it follows from the essence of the offer or the situation in which it was made, then the offer may be withdrawn.

The term for concluding a contract by means of an offer depends on whether the text of the offer contains an indication of the acceptance period or not.

When the deadline for acceptance is specified in the offer, the contract is considered concluded if the acceptance is received by the offeror within the period specified in it, this is stated in Article 440 of the Civil Code of the Russian Federation.

If the term for acceptance is not specified in the text of the offer, then the contract is considered concluded if the acceptance is received by the offeror before the expiration of the period established by law or other legal acts, and if such a period is not established, within the time normally necessary for this (Article 441 of the Civil Code of the Russian Federation).

A similar opinion is shared by law enforcement practice. So, in paragraph 57 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 6, the Plenum of the Supreme Arbitration Court of the Russian Federation "On some issues related to the application of part one of the Civil Code of the Russian Federation" it is said that the contract is recognized as concluded at the time the person who sent the offer receives its acceptance, provided that that the acceptance was received by the person who sent the offer within the period specified in it, and in the absence of a period for acceptance in the offer - before the expiration of the period established by law or other legal acts. If the term for acceptance is not determined either by the offer itself, or by law or other legal acts, the contract is considered concluded provided that the acceptance is received within the time normally required for this.

For reference:

Article 11 of the Federal Law N 38-FZ "On Advertising" can be cited as the deadline for accepting an offer, established by law, according to which an advertisement recognized as an offer is valid for two months from the date of distribution of the advertisement, provided that it does not specify a different period.

If the offer, law, other legal acts, in addition to the period for accepting the offer, determine the period for its consideration and the notice of acceptance is sent to the offeror within the specified period, the contract must be recognized as concluded even if the notice of acceptance is received by the offeror late, except in cases where the offeror immediately notifies the acceptor of the "late" acceptance (Article 442 of the Civil Code of the Russian Federation).

Note!

Civil law, in addition to the "ordinary" offer, also provides for the so-called public offer, the concept of which is disclosed in Article 437 of the Civil Code of the Russian Federation. Moreover, as follows from this article, one should distinguish between an invitation to an offer and the public offer itself. Advertising and other offers addressed to an indefinite circle of persons are considered precisely as an invitation to make offers. However, if an advertisement addressed to an indefinite circle of persons contains all the essential terms of the contract proposed for conclusion, it may be recognized as a public offer. An example is the sale of goods on the Internet, according to samples (catalogues), and the like.

As follows from paragraph 2 of Article 437 of the Civil Code of the Russian Federation, a proposal containing all the essential terms of the contract is recognized as a public offer, from which the will of the person making this offer is seen to conclude an agreement on the conditions specified in the proposal with anyone who responds.

The concept of a public offer is closely related to a retail sale and purchase agreement, the civil law basis of which is regulated by the norms of Articles 492-504 of the Civil Code of the Russian Federation. The peculiarities of using a public offer in retail are established in Article 494 "Public offer of goods" of the Civil Code of the Russian Federation, and they relate to both retail trade at the location of the goods and trade outside the location of the goods.

The specifics of concluding a retail sale and purchase agreement on the terms of a public offer outside the location of the goods are established by paragraph 1 of Article 494 of the Civil Code of the Russian Federation. According to this norm, the offer of goods in its advertising, catalogs and descriptions of goods addressed to an indefinite circle of persons is recognized as a public offer only if it contains all the essential terms of the retail sale contract. If these conditions are met, then the seller is obliged to conclude a contract with any person who responded to this offer. If the product offer does not contain the essential terms of the retail sales contract, then such an offer is considered as an offer to make an offer.

The display of goods at the place of their sale (on the shelves, in showcases, etc.), the demonstration of their samples or the provision of information about the goods sold (descriptions, catalogs, photographs of goods, etc.) at the place of their sale is recognized as a public offer, regardless of whether the price and other essential terms of the retail sale contract are indicated.

Consequently, at the place of sale of the goods, the buyer has the right to demand from the seller the fulfillment of obligations under the contract, even if there is no price for the exhibited, demonstrated goods or other essential terms of the contract are not indicated. The only exceptions are goods from which it clearly follows that they are not intended for sale (registration trading floor, shop equipment etc).

Internet shop offer

What is a public offer?

In accordance with Art. 426 of the Civil Code of the Russian Federation, a public contract (offer) is a contract concluded commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it (retail trade, transportation by public transport, communication services, energy supply, medical, hotel service etc.).

This means that when placing a public offer, you are not entitled to give preference to one person over another when concluding a public contract (except as provided by law and other legal acts).

According to the rules distance trading(clause 12) the offer of goods in its description, addressed to an indefinite circle of persons, is recognized as a public offer if it is sufficiently defined and contains all the essential terms of the contract.

For retail sale and purchase, the essential conditions are:

1. Subject matter of the contract, i.e. goods chosen by the Buyer, its quantity.
2. The cost of the goods.
3. Terms of delivery of goods.

Note! According to the Distance Selling Rules (clause 26), the delivered goods are transferred to the buyer at the place of his residence or other address indicated by him, and in the absence of the buyer - to any person who has presented a receipt or other document confirming the conclusion of the contract or registration of delivery of goods. Those. you have the right to demand from the person receiving the goods identification documents or a document confirming the conclusion of the contract. This is especially true for prepaid goods.

For example, you can ask for an order number, order confirmation receipt, customer credentials as such evidence.

Wherein:

The seller is obliged to conclude an agreement with any person who has expressed his intention to purchase the goods proposed in his description.
the seller is obliged to inform the buyer about the period during which the offer for the sale of goods by remote means is valid.

How can the buyer accept the terms of the offer?

The buyer, having familiarized himself with the offer and wishing to accept its terms, must make an acceptance (Article 438 of the Civil Code), i.e. actions specified in the offer.

Registration on the Site;
filling out the registration form;
filling out an order, etc.

Paragraph 20 of the Distance Selling Rules introduces for online stores special rules.

It is relevant for online stores when the sale is carried out precisely remotely and indicates that the contract in this case can be considered concluded from two points:

From the moment the seller issues the buyer a cash or sales receipt or other document confirming payment for the goods;
or
from the moment the seller receives a message about the buyer's intention to purchase the goods.

It is this second option that must be indicated in the offer as an acceptance.

Please note that according to the Distance Selling Rules, the buyer's acceptance must contain a number of information:

A) full company name and address (location) of the seller, last name, first name, patronymic of the buyer or the person (recipient) indicated by him, the address to which the goods should be delivered;
b) name of the product, article number, brand, variety, number of items included in the package of the purchased product, price of the product;
c) type of service (when provided), time of its execution and cost;
d) obligations of the buyer.

In accordance with the Distance Selling Rules, before accepting the offer, the buyer must be familiar with the following information:

The main consumer properties of the goods;
address (location) of the seller;
place of manufacture of goods;
full company name of the seller;
price and conditions for the purchase of goods, their delivery, service life, expiration date, warranty period;
order payment for goods,
the period during which the offer to conclude the contract is valid.

This means that this information must be available to the buyer before he performs the actions that are recognized as acceptance. For example, this information can be placed next to the product.

It must be admitted that in practice a very small number of online stores comply with this rule. Often such information is not contained in the offer itself, which means that, from the point of view of the law, the contract may be recognized as not concluded.

What else needs to be included in the offer?

Accompanying documents and accessories of the goods (Specify which documents will be attached to the goods). For example, if cash receipt it is not you who knocks out, but the courier company, it makes sense to expressly stipulate this in the offer. Thus, you will remove a lot of questions from the buyer.
Warranty period and warranty obligations.
Consent to the processing of the buyer's personal data (indicating which data is being processed). If you transfer the buyer's data to third parties (for example, a courier company), be sure to indicate this;
The order of delivery of goods. Specify which documents the buyer should have with him, how exactly he should inspect the goods, which documents should be signed.
Order of payment for goods. Specify in what ways the buyer can pay for the goods. If you charge an additional fee for delivery or other services (for example, fitting), be sure to indicate this.
The procedure for returning goods.
The procedure for sending and considering customer claims, as well as resolving disputes in court. Note! You can establish a mandatory pre-trial claim procedure. This means that the buyer must first file a claim with you before going to court.

Thus, the most important thing for an online store:

Place the necessary information on the site, giving the buyer the opportunity to familiarize themselves with it in advance, as required by law;
determine exactly what actions of the buyer mean that he has accepted the terms of the contract;
as clearly as possible stipulate in the contract all the conditions for the acquisition and delivery of goods.

As follows from the existing legislation, an online store does not necessarily trade remotely, i.e. in fact, not all methods of sale are subject to distance selling rules.

Moreover, the principled position of ACRET - the remote method of sale (including the presence of an offer) - should be considered only the method when the transfer of money occurs before the opportunity to get acquainted with the goods (for example, when paying through the website bank card or electronic money). Now we are developing the relevant amendments to the Rules for the sale of goods by remote means, which we plan to submit to the Chamber of Commerce and Industry of the Russian Federation in autumn 2013.

Offer form

Offer features:

1) certainty,
2) the goods are clearly marked,
3) the intention of the offeror to be bound in the event of an acceptance,
4) the price and the procedure for its establishment are indicated.

Under Russian law, an offer must:

Be specific enough
- express the intention of the person to consider himself/herself to have entered into an agreement with the addressee;
- contain all the essential terms of the contract.

Offer forms:

1) business letters or a set of documents consisting of commercial and specifications proposed deal,
2) a standard offer indicating normal conditions sales,
3) a draft contract signed by the exporter and containing all the main terms of the transaction,
4) email message,
5) in certain circumstances - orally at personal meetings or by phone with subsequent confirmation in writing.

Offer types:

1) sent in response to the request of the buyer. The offeror is largely bound by the terms of the request,
2) sent to potential buyers at the initiative of the exporter.

The offer contains all the main conditions of the upcoming deal:

1. product name,
2. quantity,
3. quality,
4. price,
5. terms of delivery,
6. delivery time,
7. terms of payment,
8. nature of containers and packaging.

The text of the offer must be short, clear and concise.

Acceptance (acceptance) of an offer is a manifestation of the will of the addressee of the offer, expressing his consent to the conclusion of the contract on the terms specified in the offer. Acceptance is any behavior of the addressee, which sufficiently expresses his will to conclude the proposed contract. If in the process of working out the offer, the parties were able to come to mutually acceptable conditions through correspondence, then the contract can be prepared by one of the parties, signed by it and sent in 2 copies for signing to the other party. The 2nd party, after signing, retains one copy, and returns the 2nd to the offeror, after which the contract comes into force.

There are 2 types of offers:

1. Firm - sent to only one possible buyer with an indication of the period of its validity, unconditional acceptance and receipt by the offeror is considered as the conclusion of a contract:

Binds the seller if the buyer accepts the offer
- almost full text of the contract
- the deadline is clearly defined
- sent to one or two persons (how long the goods will last).

If the buyer agrees with all the terms of the offer, he sends the seller a written confirmation (by post, telegraph, telex, fax) containing unconditional, i.e. agreeing to all the terms of a firm offer, he sends the seller a response to the offer or counter-offer indicating his terms of the deadline for response.

If the seller agrees with all the terms of the counter-offer, he accepts it and notifies the buyer in writing. In case of disagreement, he either considers himself free from his obligations under the offer, of which he notifies the buyer in writing, or sends him a new offer, taking into account the conditions proposed by the buyer or on new conditions different from those proposed by the buyer.

Failure to receive a response from the buyer within the period specified in the offer is tantamount to his refusal to conclude a transaction on the proposed terms and releases the seller from the offer made by him.

Only after the buyer's refusal, the goods can be offered to another, but on the same conditions on which the first firm offer was issued.

The buyer's consent to the conditions set forth in such an offer is confirmed by a firm counter-offer. After confirmation of the counter-offer by the seller (acceptance), the transaction is considered concluded.

2. Free - can be sent to several buyers without specifying the expiration date and without any obligations on the part of the seller. The consent of the buyer is confirmed by a firm counter-offer. The transaction is considered concluded after the seller accepts the counter-offer of one of the buyers, whom the seller chooses. There are also a protective and public offer.

Protective - is used not for transactions, but for the division of the market between members of associations. It contains conditions that are clearly unacceptable to the buyer, in order to direct him to the member of the association serving the market in which the buyer is located.

Acceptance of the offer

Important

The offer is recognized as a full-fledged contract for tax purposes. In particular, it was established that a VAT deduction is possible only if there is an agreement providing for the transfer of the relevant amounts. Despite the fact that the offer, as a rule, is an invoice for payment, it is recognized as a full-fledged contract and serves as the basis for VAT deduction. Of course, if it is accepted.

Acceptance is the specific actions of the counterparty specified in the offer. Since the Civil Code (Article 438) stipulates that the main condition for acceptance must be its completeness and unconditionality, then, as a rule, acceptance of an offer is a payment. Silence or non-payment, respectively, cannot be recognized as acceptance. However, if the offer provides for other specific actions of the buyer that he can take to confirm his desire to conclude an agreement (for example, acceptance of the shipped / delivered goods, acceptance of services or works, etc.), then these actions will also be considered acceptance.

From the point of view of the Tax Code of the Russian Federation, the offer does not contain any features, since the offer is only a proposal to conclude an agreement. Only concluded transactions are accepted for taxation. In other words, in order for the offer to be taken into account in the taxation of the company, it must become a transaction, that is, be accepted.

Offer types

A public offer (provided by 437 of the Civil Code of the Russian Federation) is an offer of a product or service to an indefinite and unlimited circle of persons, containing a description of the product or service, the price and conditions for the transfer of the product or the provision of the service.

Today, probably, the most striking example of a public offer is the offer of online stores, where the site contains a description of each product, price, payment methods, terms and conditions of delivery.

Also, a public offer can be an advertisement of a product or service in any media, but on condition that it contains all the specific and sufficient conditions for concluding a contract. However, in most cases, advertising is designed to present a product or service to potential buyers in a favorable light and draw attention to their differences from similar products. Unlike the offer, it does not aim to inform the potential counterparty of the essential terms of the future contract.

A non-public offer is usually called the offer of a product or service to a specific person or a limited circle of people. An example of a non-public offer is the issuance of an invoice for payment for work, services or goods. The invoice always contains such mandatory details as the name and quantity of goods (services), unit price, total amount to be paid, as well as bank details for payment.

A firm offer is offered by the seller to one specific potential buyer, indicating the period during which the seller is bound by the obligation to sell. The transaction is considered completed if during this period the buyer accepts (consent) to accept the terms of the offer.

As a rule, the term of the offer depends on the demand in the market for the product offered - the greater the demand, the shorter the term of the offer.

A free offer is addressed to several buyers at once and is used by the seller to monitor the market.

It is advisable not to abuse the number of issued free offers, as the market may get the impression that there is too much of the offered product and they want to sell it as soon as possible. In essence, this is a proposal to enter into negotiations.

Offer in advertising

From a legal point of view, these offers may be an advertisement or an offer. AT federal law“On Advertising” defines what is advertising under the current legislation - “advertising is information distributed in any form, by any means, about an individual or legal entity, goods, ideas and undertakings (advertising information), which is intended for an indefinite circle of persons and is designed to form or maintain interest in these physical, legal entity, products, ideas and endeavors and contribute to the realization of goods, ideas and endeavors. According to this definition, any information about goods or services intended for an indefinite circle of people can be recognized as advertising, since the main purpose of posting such information is to attract attention. potential consumers to goods or services.

If the advertisement contains unreliable data on the price or other essential conditions of the goods or services offered for sale, such advertising, in accordance with the Federal Law "On Advertising", is unreliable. Responsibility for false information in advertising is borne by the Advertiser - a legal or natural person who is a source of advertising information for the production, placement, subsequent distribution of advertising. In particular, the Federal Law "On Advertising" provides for administrative liability in the form of a fine.

If this offense occurs repeatedly within a year after the imposition of an administrative penalty for the same actions, false advertising entails criminal liability in accordance with the legislation of the Russian Federation. In civil law, persons whose rights and interests are violated as a result of advertising have the right to apply to the court or court of Arbitration with claims, including claims for damages, including lost profits, compensation for harm caused to health and property, compensation for moral damage, public refutation of inappropriate advertising. But I would like to note that compensation for damages in a civil law order can stretch for a long time, and from a legal point of view, these cases are quite complicated.

We will separately consider the information posted on the Internet, including on the official information resources of organizations. In such cases, the process of proving the fact of posting information can be very difficult. The fact is that with a simple printout of information, it is not possible to prove its authenticity and compliance with the information posted on the information resource. If you decide to make printouts with the participation of a notary, so that the notary can certify the authenticity and identity of the printouts with the information posted on the information resource, you will have to call the alleged violator of your rights by law to be present during these actions. Naturally, the alleged violator, having learned for what purpose he is to come, will come to the notary, will be able to correct the information in advance or even turn off the information resource, i.e. make it inaccessible to users over the Internet.

The concept of an offer is given in Article 435 of the Civil Code of the Russian Federation. According to this article, “an offer is an offer addressed to one or several specific persons, which is quite definite 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. The fundamental difference between an offer and advertising is that from the moment it is received by the addressee, the offer imposes on the person who sent it the obligation to conclude an agreement on the conditions specified in the offer.

Information about goods or services posted in the media is essentially an advertisement, not an offer. The main difference is that this information, like advertising, does not contain all the essential terms of the future contract (Essential terms are the terms that are mandatory for this type of contract by virtue of law, as well as any condition that one of the parties considers mandatory for this contract). Also, the offer must be sent to strictly defined persons, in contrast to advertising, which is placed for an indefinite circle of persons. The only exception to this rule will be the placement of information about the readiness to conclude a public contract. According to Article 426 of the Civil Code of the Russian Federation, “A public contract is a contract concluded by a commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it (retail trade , transportation by public transport, communication services, energy supply, medical, hotel services, etc.)”. The peculiarity of a public contract is that the organization is not entitled to refuse to conclude this contract, as well as change the price of goods, works or services, as well as other conditions of the public contract. But again, attention should be paid to the complexity of proving when | |

Firm offer(firm offer) - a written offer to sell a certain batch of goods sent to a specific buyer. This is an offer on the basis of which the offeror has certain obligations arising from the offer. In it, the seller specifies the period during which he considers himself bound by the proposed conditions, i.e. he has no right to cancel or change them. The offer received by the addressee cannot be withdrawn within the period established for its acceptance, unless otherwise specified in the offer itself or follows from the essence of the offer or the situation in which it was made (Article 436 of the Civil Code of the Russian Federation). During this period, the seller cannot apply with a similar offer to another partner. A response not received within the time specified in the offer means the buyer's refusal to conclude the contract; the seller is released from the offer made by him and has the right to apply with such to another partner.

Having received an appropriate message with a proposal to conclude a contract, the buyer must either accept such an offer in full or reject it. The acceptance must be complete and unconditional (clause 1, article 438 of the Civil Code of the Russian Federation). The buyer's disagreement with any condition of the offer is equated to a refusal to conclude a contract on the proposed terms. In this case, the buyer sends a new offer to the seller. If there are objections from the buyer between him and the seller, the negotiation of the terms of the deal being treated may continue until an agreement is reached on all essential conditions contract.

If the offer to conclude a contract is fully acceptable to the buyer, he sends the seller an acceptance within the period specified in the offer, which must be complete and unconditional. The contract is considered concluded if the acceptance is received by the person who sent the offer within the period specified in it (Article 440 of the Civil Code of the Russian Federation).

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