The phenomenon described by the borrowed and not fully understood word “offer” is present in our lives quite widely. The concept of a corresponding contract is associated with the offer, but it has features that cause controversy among specialists. Can an offer be considered a contract in its pure form? What are the main features of this agreement? What types of offers are used in business today and where is it used?
What is an offer, how to make or withdraw it ?
Is an offer a contract?
The expression “offer agreement,” found everywhere in economic literature and even in commercials, convinces us that these concepts are inseparable. An offer is a contract.
In what cases and how is an invoice agreement (invoice offer) drawn up ?
However, not all experts share this point of view. Let's figure out why. “Offer” comes from the Latin word “I offer.” Essentially, this is a proposal. For example, an offer to purchase a tractor. Based on this proposal, an agreement is concluded between the parties, written or oral, which is then executed.
An offer, from this point of view, is not yet a contract, but only voiced, declared intentions. It describes future contractual terms from the point of view of one of the parties, and the other party can consider them, accept or not accept them.
On a note! Sometimes an offer is also called a “pre-contract”.
How to accept an offer ?
The features of an offer containing all the significant, essential terms of the future contract are indicated below:
- Destination. The offer must contain information to whom it is addressed: one person, a group or everyone without restrictions. For example, the price of a product on the price tag is addressed to all potential buyers who enter the supermarket.
- The terms of the transaction must be described in such a way as to prevent their different interpretations. The price of a product and/or a discount on it must be indicated in one figure (in rubles, as a percentage), and not as an interval.
- There must be a clear indication of the intention to enter into a transaction with the other party, in the example given - the intention of the supermarket to sell the product under certain conditions, and not just inform the buyer about its availability.
In what period must an offer be accepted for the contract to be considered concluded ?
Another point of view is that the offer already contains all the features of a contract. In the Civil Code of the Russian Federation, the offer is mentioned in a number of articles, starting from 435 to 439 inclusive. Yes, Art. 435 expressly states that an offer is a proposal that includes all essential contractual terms. Here the offer is equated to a commercial proposal, which acquires the force of a contract upon signing, and therefore must contain:
- comprehensive, truthful information about the product (work, service);
- calculation options;
- method of signing (concluding) the contract;
- liability for violation of contractual terms.
In practice, an offer is most often recognized as an agreement and acted upon as within the framework of an agreement, taking into account the features mentioned by the Civil Code of the Russian Federation in the above-mentioned articles. In particular, termination of the offer is impossible by law, as is changing its terms. The offer is terminated only if its period expires or the offer is canceled (by the seller before the buyer has taken advantage of it).
The contract is recognized as concluded at the moment when the other party agrees to the proposal sent to it, the author of the proposal has received consent (Articles 440, 441 of the Civil Code of the Russian Federation). They say that the offer has been accepted. This and other terms related to the offer agreement need to be considered in more detail.
Basic concepts and terms
So, acceptance is a response about acceptance of an offer, formulated by the person to whom it was addressed. It must be expressed specifically, completely, unconditionally. Silence cannot be recognized as acceptance, but the legislator makes a reservation - unless otherwise follows from (according to the text of Article 438 of the Civil Code of the Russian Federation):
- law;
- agreements of the parties;
- custom;
- previous business relations of the parties.
It turns out that under certain conditions, silence can be regarded as consent to accept the offer. For example, sometimes when you go to a site that offers some software, you just need to silently read the agreement, check the box in the form provided, indicating agreement with the terms, and the download of the software will begin. The contract is considered concluded. Here there are actions confirming acceptance, not words.
If the party to whom the offer was made does not fully agree with the terms of the offer and intends to change them, we are talking about a counter-offer, and not about acceptance.
Acceptor is the party to whom the proposal (offer) is addressed. Offeror - an organization or individual formulating an offer, offering.
The offer can be formulated not only in writing, but also orally.
There are several types of offers:
- public – addressed to everyone without restrictions (buyers in a supermarket), can be oral, usually does not require the signing of additional papers;
- firm - addressed to one acceptor, usually indicating the validity period of the offer;
- irrevocable - an offer that the offeror cannot revoke under any circumstances, even before the offer is accepted (in most cases this is possible);
- free - is the distribution of commercial offers to representatives of a certain part of the market to conduct a joint business, a limited number of them.
Note that advertising can actually act both in the form of a public offer and in the form of a regular advertising campaign. For example, if an advertisement offers the fulfillment of certain conditions before a certain calendar date, it has the characteristics of an offer. An advertising campaign with information about services or goods in general cannot be considered an offer: it only informs about the benefits of the product, but does not formulate specific proposals. In practice, advertisers often mark commercials with the phrase “not a public offer” in order not to be bound by the stated conditions and change them at their discretion.
An irrevocable offer is represented, for example, by sending commercial proposals to counterparties in a situation of company bankruptcy. Until the purchase is completed and the new owner has not decided, the offer will remain valid. It is not possible to cancel the offer.
Where to see
The offer is a mandatory parameter that an investor must study when choosing bonds for his portfolio. I always do this on the website rusbonds.ru. The card of a specific security always contains information about early redemption.
Let's return to Atomenergoprom-8-bob - the bond that my friend bought. This is what we see in the description.
After clicking the “Provided” button, detailed conditions for early repayment open.
Similar information can be found in your personal account in the broker’s application and on other aggregator sites.
If you do not yet know the specific security you want to buy, but are making a list of possible candidates on the website rusbonds.ru, then always pay attention to the columns “Offer Date” and “Effective Yield”. Everything is clear with the date - it shows when the procedure is provided. For ordinary securities, the effective yield is calculated by the maturity date, for securities with an offer - by the offer date.
Purpose and meaning of the offer
An offer is often used by businesses as an offer to buy consumer goods, for example, cell phones or similar services, for example, delivery of pizza from a restaurant, or payment for a subscription to news, viewing content. This approach saves time as it does not require direct contact with the client. At the same time, when working with regular, trusted clients, a standard contract is most often used, although an offer is not excluded. The offer is not used in cases involving a possible change in the terms of the agreement during negotiations. Its conditions should be standard.
In certain situations, an offer may eliminate the need to prepare additional primary documents. If the text of the proposal that is accepted contains the clause “the contractor does not draw up documents” or similar wording, then it is assumed that the client, by paying for the services, agrees with their quality. You can do the same by setting up the ability to send acts to the client, and not wait for the signed copies to be returned after a certain period has expired. The logic here is this: if the client does not send a report, does not make any claims, it means that he is satisfied with the quality.
Under an offer agreement, receiving money for a product or service occurs faster, since the terms of the offer may specify payment as the client’s consent. Some types of offer, for example, a free offer, allow you to effectively analyze a new market for a company and its potential - based on acceptance data. Let's look at the application of the offer using specific examples.
Offer for small purchases
Federal Law No. 44 dated April 5, 2010 on government procurement allows you to conclude an agreement for an amount of up to 300 thousand rubles. from a single supplier, performer or contractor (Article 93-1, paragraph 4). If the customer belongs to the cultural sphere and other institutions listed in Art. 93-1 clause 5, the limit is 600 thousand rubles. under contract. Annual limits for such purchases have also been established. They are carried out on the basis of an offer agreement. The government customer evaluates contractual prospects, prepares a proposal and submits it to the contractor. He, in turn, can accept it or refuse.
Offer in bonds
A security that indicates that an investor has made a loan to an issuer, usually for a long term, is called a bond. In this case, the issuer can be either a company or a state.
The bond can be repaid early, at par or on other terms, on a date determined in advance. This is the bond offer.
It comes in two types:
- revocable – the issuer redeems the bonds on a certain date (call option);
- returnable – the investor presents the bond for redemption on a certain date (put option).
Government bonds, as a rule, do not imply an offer; it is common in the field of corporate financial relations.
Sample
The notification must be made in the following form:
“Hereby _____________________________________ (full name of the holder) announces his intention to sell interest-bearing non-convertible documentary bearer bonds “Gazpnf1Р6R” series 09 with mandatory centralized storage, state registration number 5-08-51265-Z dated April 15, 2012, in accordance with the terms of the Offeror’s irrevocable offer dated “__”___________201_.
Full name of the Holder:
Number of Bonds offered for sale
Stamp, signature"
The notification must be accompanied by a copy of the demand for fulfillment of obligations, as well as all documents confirming the transaction.
Briefly
- An offer (or offer agreement) contains a proposal from one party to supply goods, works, services to the other party. The proposal is either accepted (acceptance) or is ignored, in which case it is considered that acceptance has not occurred.
- Depending on the purpose of the offer, various types are used. The offer applies if we are talking about mass sales, without direct contact with the counterparty.
- By using an offer, you can reduce paperwork, get money faster for services or goods, and also use offers to determine the prospects of new markets.
- The offer is used in many areas of economic life: retail and wholesale trade, online sales, government procurement. When bonds are repaid early at the initiative of the issuer or investor, they also speak of a bond offer.
Peculiarities
The main nuance of an irrevocable offer is that it cannot be broken after signing the documents. The terms of the deal do not change. The contract must be written in simple and accessible language so that the parties do not have any disagreements later. When agreeing to a contract, the acceptor must adequately evaluate what he is acquiring and under what conditions.
Another feature of this type of offer is the absence of a withdrawal date. The addressee who received the offer has the right not to enter into an agreement and may refuse it.
