Offer (law)

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The offer (legally: application , colloquially also: offer ) is in civil law a declaration of intent that needs to be received and is aimed at the conclusion of a contract under the law of obligations .

General

In everyday life, the offer appears most frequently in the purchase contract . It does not matter from whom the offer originates; the earlier declaration is always considered an offer. For example, the order in the mail order business is an offer from the buyer, and the sending of the goods for inspection is an offer from the seller . Sending unordered goods or providing unordered services is considered an application under German law. If the seller accepts an order (application), he hereby issues an order confirmation while the buyer has an order. In the case of other types of contract, such as the rental agreement , the offer (in this case) can come from the tenant or landlord, and the other can accept it.

Legal issues

Since the offer is a unilateral declaration of intent that requires receipt , it becomes effective upon receipt by the recipient of the offer ( Section 130 BGB ). If someone asks another person to conclude a contract, he is bound by the application in accordance with Section 145 of the German Civil Code (BGB). Binding means that the offerer can not revoke his application ; it is in the power of the other party to bring about the contract through acceptance . The terms "non-binding", "while supplies last" or " sale may reserve" the bondage but are effectively excluded. In June 1921, the Reichsgericht (RG) saw a "non-binding offer" not an application within the meaning of § 145 BGB, but an invitation to the contracting party to submit a contract offer. In good faith , however, the requesting party considered it to be obliged to comment immediately on the request contained in the response to a “non-binding offer”. If the "non-binding offerer" did not comply with this obligation to reply, his silence was seen as acceptance of the offer. In June 1958, the Federal Court of Justice (BGH) merely pointed out in passing that the seller wanted to exclude any liability with such a clause. However, he had not decided whether the declaration linked to such a clause merely constituted an invitation to submit an offer or whether it was itself an offer. Today the BGH evaluates the "offer subject to change" as a rule as an invitation to submit an offer , but denies tacit acceptance . In the award procedure, the indication that the offer is "subject to change" or "non-binding" leads to the offer being excluded.

The application expires if it is rejected by the applicant or if it is not accepted in due time ( § 146 BGB). The application made to someone present can only be accepted immediately in accordance with Section 147 BGB . This also applies to a person-to-person application made by telephone or other technical equipment . An application made to an absent person can only be accepted up to the point in time at which the applicant can expect the response to be received by post under regular circumstances. The circumstances include the period in which a letter is received by the customer , the customer's consideration time , which varies depending on the type and significance of the object of purchase, and the period for submitting the acceptance by letter. At a time limitation of the application must be adopted within the deadline done ( § 148 BGB). The belated acceptance of an application counts as a new application ( Section 150 (1) BGB). The contract eventually comes through the acceptance of the application concluded ( § 151 BGB). The application and acceptance are the two declarations of intent of the contracting parties with the same content and aiming at the same legal consequence .

On the one hand, the commercial offer is intended to make it clear that the provider is a merchant who carefully compiles the criteria relevant to the offer , including delivery and payment conditions . On the other hand, it distinguishes itself from the technical offer , which contains the technical information up to the instructions for use .

content

An application must have the following characteristics in order to be valid:

  • The content of the offer must be determined and contain all the essential elements to be regulated in the contract ( Latin essentialia negotii , the main obligation to perform ). In the case of a sales contract, for example, the certainty relates to the type and quantity of the object of purchase ("40 liters of diesel") and its purchase price . A simple “yes” is sufficient as an assumption. An offer can therefore only be accepted unchanged, so that changes (restrictions or extensions) according to Section 150 (2) of the German Civil Code (BGB) are considered to be rejection and represent a new application.
  • The offer must show a will to be bound , i.e. the willingness to accept the submitted proposal in the event of acceptance as a contract with the content offered . The invitation to submit an offer ( Latin invitatio ad offerendum : such as shop window display , menu , catalog , advertising , teleshopping ) does not contain any commitment and is therefore not to be regarded as an application. These are declarations with which someone asks others to enter into contract negotiations and, if necessary, to submit a contract offer himself, without the declaring party wanting to be bound. Declarations aimed at the general public ( Latin offerta ad incertas personas : such as vending machine , issue prospectus , offer on the homepage of a virtual auction house ) do not have any commitment. The imprint "deposit" on a beverage bottle expresses an offer to everyone to take back the bottle against payment of the deposit amount . Offers on the Internet are also an invitation to the user to submit an offer to the online provider .

A mere inquiry as to whether certain goods are in stock, for example, does not constitute an application or an offer.

As a rule , offers are free of form so that they can be given orally , in writing , by telex or by email . If a special form is stipulated for certain types of contracts, this must also be adhered to in the offer ( e.g. notarization in the case of a land purchase contract ).

International

In Switzerland , the application to conclude a contract is regulated in Art. 3 ff. OR . The binding to the application until the expiry of a deadline results from Art. 3 OR. According to Art. 4 OR, those present are to be accepted immediately, this also applies to applications by telephone. According to Art. 6a OR, sending unordered items is not a request. Unlike in Germany, the display of goods with price information is an application according to Art. 7 OR. In Austria the application is called "Promise" according to § 861 ABGB , which leads to a contract through acceptance. According to § 862 ABGB, the promise (application) must be accepted within the period specified by the applicant. In the absence of such a request made to a person present or by telephone from person to person must be accepted immediately. Keeping, using or consuming an item that has been sent to the recipient without his request does not constitute acceptance of an application ( Section 864a (2) ABGB).

In common law the offer is subject ( English offer ) no binding effects because of the Consideration teaching a binding obligation exists only if the person entitled for its part already has a return has not given or promised, the commitment in a document ( English deed ) to be recorded. The invitatio ad offerendum is known as the English invitation to treat . In § 2-205 Uniform Commercial Code it is provided for the commercial purchase that a written offer designated as binding is irrevocable for three months. The CISG is in Article 16.1 while assuming that offers are revocable. however, according to Art. 16.2 UN sales law, offers are binding if a deadline or if the irrevocability is expressed in another way.

In French law, the Civil Code (CC) is silent on issues such as the binding to the contract offer ( French offer ), the revocability of the offer, the time and place of the conclusion of the contract between absentees or the consequences of a late or modified acceptance. These legal loopholes have been largely filled by the case law of the Cour de cassation . According to Art. 1108 CC, a contract is mutual ( French commutatif ) if each party agrees to grant the other party an advantage that is equal to that of its counter-performance. The contract is amicable if it is formed by the mere exchange of consents regardless of the type of expression (Art. 1109 CC). In principle, every offer can be revoked until it is accepted. It is possible, however, that the offerer is liable in accordance with Art. 1382 CC for tort due to abuse of rights ( French abus d'un droit ). According to Art. 1589 CC, the promise to sell is a sale if both parties mutually agree to the thing and the price. In the Italian Art. 1328 Codice civile , the unlimited offer is revocable; however, if the addressee has already arranged in good faith , he is awarded a claim for damages .

See also

Individual evidence

  1. ↑ Dieter Leipold, BGB I: Introduction and general part , 2008, p. 181
  2. ↑ Heinz Georg Bamberger / Herbert Roth / Hans-Werner Eckert, Commentary on the BGB , 2nd edition, 2007, § 145 BGB marg. 44
  3. ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 145 Rn. 4th
  4. ↑ RGZ 102, 227 , 229 f.
  5. ↑ BGH NJW 1958, 1628
  6. ↑ BGH NJW 1996, 919
  7. ↑ Procurement Chamber Free State of Thuringia, decision of December 16, 2015 - 250-4003-6712 / 2015-N-024-UH -
  8. ↑ Dieter Schwab / Martin Löhnig, Introduction to Civil Law , 2012, p. 246
  9. ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 145 Rn. 1
  10. ↑ BGH NJW 2002, 363, 364
  11. ↑ BGH NJW 2007, 2912
  12. ↑ Konrad Zweigert / Hein Kötz, Introduction to Comparative Law in the Field of Private Law , Volume 2, 1996, p. 351
  13. ↑ Werner Schubert / Mathias Schmoeckel (eds.), 200 years of Code civil: The Napoleonic Codification in Germany and Europe , 2005, p. 110
  14. ↑ Konrad Zweigert / Hein Kötz, Introduction to Comparative Law in the Field of Private Law , Volume 2, 1996, p. 354