What is a public contract and a public offer? Public offer, what is it and why is it needed?

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

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

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

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

The offer is called solid if it is directed to one to a specific person . The offer is called free when it is directed to several persons.

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

Public offer - what is it?

A public offer is considered to be an offer for the supply, sale or provision of certain services sent to persons, the number of whom is not determined or specified.

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

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

Example

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

The difference is that the seller explicitly states in the introductory part that this agreement is both a contract and an offer, and also that it is sent to any persons: both individuals and legal entities, without a specific indication to whom exactly.

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

Are prices a public offer?

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

Public offer on the website

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

In number similar agreements included as transaction agreements purchase and sale, and for holding joint events. Consent with the proposed offer can be expressed by registering on the website of the person who proposed the offer or by ordering a particular product.

Violation of a public offer

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

If either party violates its contractual obligations, liability arises within the framework of the Civil Code of the Russian Federation. Unless, of course, there is intent to commit a crime in the actions of the party that violated the contract.

Discussion (7)

Indeed, we often meet with an offer in Everyday life. In newspapers, magazines, and other advertisements that publicly inform an indefinite circle of individuals and legal entities about the conditions for the sale of certain products, the issuance of loans under certain conditions, the procedure and sequence of concluding contracts. As a rule, the terms of the offer are mandatory for persons who publicly announced the offer.

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

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

From the article “Prices themselves are not a public offer.”
But here I disagree, if you go to retail store, then by law, in essence, price tags are a “public offer”, since they oblige the sale of goods on these terms. And the law directly states what will happen to the seller who refuses to fulfill this “public offer”. But this topic can be debated for a long time.

An offer is not a clear word for an ordinary person, but nevertheless, every person sooner or later participates in such a transaction. For example, who hasn't received letters from banks with a credit card attached? Probably a good half of the population. This is an offer; the letter indicates both the payment procedure and interest rate and other necessary terms of the agreement between the bank and the potential creditor. And counterfeit is generally an interesting thing. In 2013, the man changed the terms of the loan so much that the bank owed him a large amount. Since then, banks have somehow calmed down and are increasingly trying to communicate personally with clients.

There was a funny situation in our organization regarding counterfeits. As part of attempts to conclude an agreement for the rental of special equipment, counteroffers were exchanged with the potential contractor for almost a month; in total, the document was edited six times before acceptance occurred. In the end, of course, the contract was concluded.
But seriously, another type of offer is not discussed here. The so-called irrevocable offer, which obliges the offeror to conclude an agreement on the specified conditions with all, without exception, responding counterparties without the possibility of refusal. Therefore, such offers are not public and are used mainly in the area of offers for the repurchase or full redemption of shares/bonds of an enterprise (for a limited number of persons). There is even a special type of offer bond. In this case, it is used for non-market regulation of the level of profitability of a security.
In general, any offer is a kind of touchstone, a pioneer of the contractual process, which allows monitoring of the target group without imposing special obligations on the offeror (unless, of course, it is an irrevocable document), the popularity of which is growing.

According to the law, a public offer is an offer that, firstly, is addressed to an indefinite number of persons, and secondly, contains everything essential conditions agreement, and, thirdly, it quite clearly expresses the intention of the offeror enterprise to consider itself to have entered into an agreement with anyone who responds to this offer (). Please note that a public offer differs from a regular invitation to enter into legal relations. The latter, for example, includes regular advertising. Thus, many arbitrators are confident that when advertising tariff plan It is not at all necessary to indicate all the conditions of hypothetically possible cooperation, because the interested client has the opportunity to independently familiarize himself with them on the website or in the operator’s office (see, for example, resolutions of the Federal Antimonopoly Service of the Volga Region dated April 12, 2010 No. A12-18095/2009 and Northwestern district dated 07.10.2010 No. A56-82461/2009).

But if some advertisement, addressed to an indefinite number of persons, will contain specific essential conditions possible agreement, it can be recognized as a public offer. An example here is a clear indication of the cost of the product, the timing or method of delivery of the goods, as well as other commercial messages that, in the opinion of the offeror, may be of interest to a potential customer or buyer. In addition to all of the above, a public offer can also include a promise to each client upon fulfillment of the conditions clearly established by the offeror (purchase of goods for a certain amount, “sampling” of a specific number of product items, etc.) provide a discount on subsequent purchases or provide the product as a gift.

Communication service

Let us dwell in more detail on the public offer of telephone services. As a rule, accept this proposal quite simple. But no one can predict how the cooperation of the newly made partners will unfold further. For example, one company providing communication services was confident that by accepting their public offer, the potential subscriber also agreed that if payment was late, he would be charged penalties.

On a note

A public offer can also include a promise to each client, subject to the fulfillment of conditions clearly established by the offeror, for example, the purchase of goods for a certain amount, a “sample” of a specific number of product items, etc., to provide a discount on subsequent purchases or to provide the goods as a gift.

“However, judging by the opinion of many arbitration judges, in this case the agreement on a penalty should not be considered concluded,” warns Moscow lawyer Sergei Voronin. - The logic here is as follows. The fact of acceptance of a public offer does not indicate the conclusion of an agreement on a penalty, since, according to , such an agreement must be made exclusively in writing, which means that the acceptance must relate directly to the agreement on a penalty (see, for example, the resolution of the Federal Antimonopoly Service of the Ural District dated November 23, 2009 No. Ф09-9124/09-С2)".

There are also frequent other difficulties associated with the public offer of communication services. For example, sometimes a subscriber who has made an acceptance, but does not want to pay money for communication after that, tries to prove that he used the services completely by accident, and the quality of their provision left much to be desired. For example, one fairly large and well-known communications company published in the media a public offer to conclude an agreement for the provision of long-distance and international telephone services. According to it, any company is considered to have entered into an agreement with them from the moment the number “8” and the numbering zone code of the called subscriber are dialed on the user’s terminal equipment. According to the details of the connections, the entrepreneur conducted long-distance telephone conversations with various subscribers located both in Russia and abroad. At the same time, the cost of the services provided amounted to more than two and a half million rubles. However, payment was still not received from the subscriber, and the “communications” company eventually went to court, citing the defendant’s failure to fulfill its obligations to pay for the communication services provided.

Not a public offer

Quite often, the “body” of advertisements includes the phrase: “This is not a public offer.” This is nothing more than an attempt by the advertising company to protect itself from the obligation to conclude contracts with everyone exactly on the terms that were set out in the advertisement, and, quite possibly, was a kind of trick. In other words, if the announcement says that the offer is not a public offer, this means that not everyone can take advantage of it. For example, only those who have a given credit institution an account has been opened, or only those customers who have already made a purchase for a certain amount in a given month will be able to purchase the product named in the offer with a 70 percent discount.

Satisfying the claims, the courts of all three instances indicated that the legal relations of the parties arose from a public offer to conclude an agreement for the provision of telephone services (decision Arbitration Court Chelyabinsk region dated 08/09/2011, as well as the decisions of the Eighteenth Arbitration Court of Appeal dated 11/09/2011 and the Federal Antimonopoly Service of the Ural District dated 03/02/2012 in case No. A76-25933/10). At the same time, the arbitrators noted that the basis for the calculations in this case was the testimony of the equipment, taking into account the volume of services provided, as well as the terms of the contract. And the bill for telephone connections is formed from data “removed” from the equipment used to record the volume of services provided (clause 106 of the Rules for the provision of communication services for local intrazonal, long-distance and international communications, approved by the RF Government of May 18, 2005 No. 310). Having studied the details of the connections, as well as having read the certificate of conformity for automated system telecom operator calculations, which were carried out according to phone number entrepreneur, the arbitrators decided that the businessman used the service and was therefore obliged to pay for it.

As a counter-argument, the defendant entrepreneur indicated that international communication services were provided without his direct consent. Moreover, the connections were very Low quality, the defendant practically did not hear from his subscribers, which, in his opinion, allows us to conclude that the service was not provided at all.

However, the plaintiff, in turn, drew attention to the fact that the entrepreneur himself was to blame for the low quality of communication, since he did not take care of setting up and protecting the equipment located in his area of responsibility. After all, the experts who examined this issue found that attempts at unauthorized access to the mini-PBX continued for quite a long period of time, and the IP address from which the connection was made between the station and the IP address of the server of the “communication” company, due to insufficient protection was available to almost anyone via the Internet.

Word by word

Please note that a public offer obliges the offering company to enter into an agreement with anyone who responds to the offer, and precisely on the terms that were initially announced. For example, if the forwarding company’s public offer stated that it would notify the client about the arrival of its cargo by mail, telephone communication, or SMS, then she should not use any other methods or documents that indirectly indicate the arrival of the goods. Otherwise, newly established business relationships risk ending in arbitration court. As an example, I will give the following situation.

On a note

The essential terms of the proposed legal relationship may not always be present in the public offer. For example, displaying goods on counters or showcases, as well as demonstrating their samples or providing information about products is a public offer, regardless of whether trading place price and other essential terms of the retail purchase and sale agreement ().

One of the consignee clients picked up the cargo from the freight forwarding company's warehouse a month after receiving an invoice for its payment. And when the parties signed a certificate of services rendered, the forwarder indicated in the same document that the consignee was charged a fee for forced storage of the parcel in a warehouse. According to the carrier, in this case the client should have taken the invoice for payment as a notification of the receipt of goods. However, the consignee considered such a statement to be unlawful and applied to arbitration, believing that the money for forced storage of the products was awarded to him unlawfully.

By the decision of the arbitration court of the first instance, left unchanged by the colleagues from the appeal, the stated requirements were fully satisfied (decision of the Arbitration Court of the city of Moscow dated December 12, 2011, decisions of the Ninth Arbitration Court of Appeal dated March 13, 2012 and the Federal Antimonopoly Service of the Moscow District dated May 21, 2012 . in case No. A40-106896/11-61-753). The judges concluded that the defendant did not prove the fact of the plaintiff’s delay in receiving the cargo, since he did not fulfill his own obligation to notify the company about the arrival of the cargo established in the public offer agreement. In his defense, the defendant forwarder pointed to the client’s right to track information about the movement and arrival of the cargo independently through the website. However, this argument did not convince the arbitrators. The judges explained that this option was not established as a contractual obligation. And therefore cannot serve as a “starting point” for the emergence of an obligation to export products.

The check, please!

Sometimes payment of the invoice is recognized as a response (acceptance) to a public offer (see, for example, resolutions of the Federal Antimonopoly Service of the West Siberian District dated June 23, 2009 No. F04-3677/2009 (9195-A45-4), FAS Ural District dated October 21 .2009 No. Ф09-8079/09-С3, Federal Antimonopoly Service of the North-Western District dated December 17, 2008 No. A56-9218/2008), shares Moscow lawyer Sergei Voronin. - The following can be cited as an example. The trading company on its website invites customers to independently create an invoice, that is, select the goods they are interested in, select payment and delivery methods, and then print payment document and pay for it. And as soon as the online seller “sees” the money deposited by the buyer in his account (or as soon as the buyer has paid the invoice - depending on what is considered the moment of payment), the seller has an obligation to deliver the goods indicated on the site (and sometimes duplicated in the invoice) conditions.

Anna Mishina, for the magazine "Calculation"

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

Let's take a closer look at the concept of an offer

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

So what is not a public offer?

This phrase from advertising projects can be regarded as an attempt by the advertising company to take measures to protect itself from dissatisfied customers. It's about that advertising often uses methods of attracting customers like “free cheese”, which is, as a rule, a marketing ploy. In other words, as promised favorable conditions, which were mentioned in the advertisement, not everyone can use them. That is, the offer (proposal) is not available to the general public.

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

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

The seller (offerer) tries to provide the most accurate and truthful information, but may make changes to the offer without the need to notify potential clients/buyers.

Small or large-scale changes that are not notified by the offeror in a timely manner may come as a surprise and mislead to the audience.

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

In different advertising campaigns you can often hear the expression - is not a public offer. What does it mean and is this information correct? An offer is a proposal under which an agreement can be concluded for the provision of any services or the sale/purchase of goods. It is usually in writing and addressed to one customer or group of customers.

A little information

The word “offer” translated from Latin means “offer”. Legislation Russian Federation regulates this as follows: an offer is an offer by one of the parties to make a purchase from the second party. Moreover, this proposal can be presented both in written and oral form.

A public offer is an offer made not to a specific buyer, but to many people

Note:The contract must specify the conditions for the provision of services or delivery of products, terms, prices and other information necessary for the client/buyer.

In most cases, the offer is the subject of the contract, although sometimes it precedes its signing. If the client likes the proposal, he agrees to cooperate and signs the contract. If he is not satisfied with something, he can develop a counter-offer and transfer it to the offeror. Amendments may include changes in delivery time, price, quantity, etc. If the buyer ignores the offer, the transaction cannot be considered concluded.

Public offer

This is an offer that is not addressed to a specific client or organization, but is distributed publicly. A public offer for the supply or provision of services can be broadcast through the media, distributed on the Internet or through advertising products. The number of recipients of a public offer is not regulated. And absolutely anyone who contacts the offeror can become a client.

A public offer is advertising, which indicates the price of the product, its delivery time and contains a call for cooperation. If any of the above is not in it, then this is considered an ordinary introduction or an invitation to enter into an agreement for the supply of services or goods.

Some advertisers indicate that advertising is not a public offer. If such an addition is present, this means that you will not be able to conclude an agreement on the terms stated in the video or on the banner. Such advertising invites you to discuss the terms of a transaction and is not a guarantee of a transaction. Also, the company that placed the advertisement can change the terms of the transaction unilaterally at any time.

Example

To resolve all the questions that arise, let’s consider an example of a public offer based on a classic online store. You select the product you need and add it to your cart. In essence, by doing this you enter into an agreement for the sale and further supply of the selected products. The seller does not care who you are - an individual or entity, LLC or company. You then agree to the terms of purchase, which stipulate the responsibilities of the parties, terms and conditions of delivery, various force majeure events and the final price. When you place an order, you are deemed to have signed public offer agreement.

The public offer agreement can be terminated, but this is a violation

Question with prices

Most often, buyers have a question: are the prices indicated in advertising or on the pages of an online store a public offer? The answer is simple - they are not. Price is one of the parts of the offer agreement, that is, in fact, ordinary advertising and an invitation to cooperation. The price does not imply the conclusion of a contract.

Question about the activities of online stores

If you went to an online store and saw a public offer on it, then this is also an offer for cooperation and the subsequent conclusion of an agreement with the consent of the parties. To agree to the offer, you need to do one of three actions (or all at once):

Register on the site by entering your details.
Select a product and add it to the cart.
Check the box next to “I agree with the terms” or similar and click on the corresponding button.

Violation of offer

An offer is a contract. By agreeing to it, you become parties to the transaction and, accordingly, contractual relations, that is, you have certain responsibilities. It doesn’t matter whether you signed a paper contract, indicated your consent on the website, or entered into a public offer in another way. If you fail to comply with the terms of the agreement, you are violating public offer law and bear responsibility in accordance with the Civil Code of the Russian Federation. Although in practice, failure to comply with the conditions usually leads to the termination of the deal and that’s where it all ends.