Many people, hearing such words as “public offer”, “is not a public offer”, do not understand what is being discussed, and what lawyers or economists wanted to say. However, when a simple citizen does not know what an “offer” and its conditions are, it is not so scary. It is really dangerous when an entrepreneur has a poor idea of it. Public offer - what is it? In simple words and understandable language, we will try to make out.
What is a public offer?
A public offer - (lat. Offero - offer) - is an offer of goods or services in advertising, descriptions and catalogs to an indefinite (often wide) circle of people, while it contains all the necessary provisions for retail sale or purchase. Two statements follow from the definition:
- A public offer, unlike a simple one, is aimed at an indefinite number of people.
- In accordance with the public offer agreement, the person who disseminated the information is required to respond to any transactions.
- For distribution, advertising is most often used. In this case, a public offer will interest a larger circle of people.
A small example of a public offer. The new computer company offers potential customers through leaflets its services: repairing the system unit, replacing the keyboard on a laptop, cleaning the computer from viruses, fixing other problems, etc. Moreover, the company indicates average prices, terms, and contact details in flyers. When a citizen comes to an institution and wants to fix a laptop, employees cannot refuse him. This is the simplest public offer.
How are offer contracts drawn up?
A public offer agreement is the acceptance (acceptance) of an offer from one company to another on favorable terms for both. For example, employees of one company will do the work for the second (unload goods), and the second will pay for it.
Acceptance is consent to the terms of the offer agreement. However, it is worth remembering that consent very rarely arises immediately. If the second company is not satisfied with the conditions of the first, then it sends its offer of a public offer. This situation in the economy is commented on as “the acceptor sends a counter-offer to the provider”. When both companies establish equivalent conditions for each other, the process will be called the “unconditional offer”.
A legally concluded transaction is, first of all, payment for a service or fulfillment of other obligations under a contract. Seals or signatures are placed at the request of the parties and are interpreted as secondary actions.
Public Offer Rules
A public offer is a serious document that must be prepared in accordance with all the rules prescribed by law. If you overlook even the smallest detail, the document will be announced as “not being a public offer”.
So, the rules of the public offer (its compilation) state that it should contain the following information:
1) The full name of the product or service.
2) Description of the characteristics of the product or service provided.
3) The exact cost when accepting the offer.
4) The method of concluding the contract.
5) Payment or delivery methods.
6) Complete information on the conditions of the offer.
7) Who and to what extent is responsible for non-compliance with the terms of the contract.
8) Contacts: registration documents, addresses, phone numbers, etc.
After studying the rules by which a public offer is drawn up, any entrepreneur will easily make a sample. The main thing is to follow the order without changing the places.
Advertising and offer
Very many beginning economists confuse the concept of advertising and public offer. More precisely, they believe that this is one and the same thing.In fact, these concepts are fundamentally different!
A public offer is a proposal of services with accurate information about them (contact details, prices, etc.). Advertising is the distribution of not personalized information, for the most part not containing accurate data, but aimed at ensuring that the client comes to the sales center and purchases a particular service or product.
Thus, a public offer is a deeper explanation of specific services in place: flyers, catalogs. Advertising is a way of distributing an offer. And do not confuse these concepts.
In addition, information about the product on the website of a particular enterprise is also very rarely a real public offer, as it is aimed at attracting customers to the store to conclude a transaction. For the most part, advertising is common on the Internet.
Advertiser Tricks
Often on advertisements you can see the inscription "is not a public offer." This is nothing more than an advertiser’s attempt to protect themselves and their company. So, if there is a similar inscription on the ad, it means that not everyone can use the offered product or service.
Examples of offers that are not offers
This is the danger of a public offer. What is this, in simple words can be explained by an example from life. Similar false offers:
- A loan at Bank N at a rate of 5% per annum can only be issued by people who have opened an account in advance with the same advertiser bank. The proposal is aimed at a specific narrow circle of persons, and therefore is not a public offer.
- Shop M offers its customers to purchase goods with a 50% discount, but the contract states that only those citizens who have already made a purchase for 2,000 rubles can use this promotion. The offer is also aimed at a narrow circle of persons and is not considered a public offer.
In this regard, you need to be very careful with advertisements and imaginary promotions.
Public offer violation
Entrepreneurs, as you know, are not always honest, so sometimes they violate the terms of the offer with a benefit for themselves. Any violation of the conditions originally accepted by both parties may be considered as a violation of the main conditions of the public offer.
Thus, if one of the parties in the buying and selling process tries to change the terms of the offer, then such actions can be regarded as a violation of the contract.
The second company or person (buyer) has the right to legally demand the return or fulfillment of the initial conditions that the public offer contains. Civil Code of the Russian Federation 435, 437, 438 declare the rights and obligations of both the acceptor and the provider:
- Fulfill fully all the conditions of the public offer.
- Do not deviate from the implementation and do not replace the conditions for concluding a public offer.
These are the main conditions of the public offer. We give an example of violation of these conditions. The buyer came to the store and bought a package of milk. The price was written on the price tag - 42 p. At the box office, this package was struck to the buyer at a price of 62 p. In such a situation, a person who is familiar with jurisdiction and knows his rights will require that the primary conditions of the offer be met, that is, break milk for him at the price indicated on the price tag. The acceptor (buyer) accepted exactly such conditions of the provider (store).
This was an example of a minor violation. 20 p. - not such a large amount. However, if you consider that a large batch of the same milk will be sold at a price of 20 p. higher than it really costs, the seller will get some good money.
Articles of the Civil Code of the Russian Federation on a public offer
In case the provider forgets the terms of preparation, and the acceptor of the terms of the public offer, the Civil Code of the Russian Federation will help both parties find a way out of this situation.
- Article 435 will for any citizen explain for certain the concept of a public offer.
- Article 437 (on the public offer) will help the providers to draft the terms of the contract correctly, and the acceptors should check and decide whether this offer is legal or whether the agreement with it is risky for one of the parties.
- Article 438 (on acceptances) makes it clear that acceptance is an unconditional agreement to accept the terms of an offer.
- Section 494 (on retail sale) explains the conditions of a public offer in retail sale.
Public offer on sites
For the Internet, it is advertising that is most common, not a public offer. However, this is not a strict rule, and it is worth being able to distinguish a public offer on the Internet from simple advertising.
Firstly, any public offer on the sites is accompanied by a clear explanation of all the characteristics, methods of payment and delivery. Secondly, it includes legal texts (or references to these texts) of the rights and obligations of both parties. The latter is used by entrepreneurs in order to protect themselves from customer claims.
Selling in online stores
Online stores are the most common sites representing a public offer agreement. However, it is often not written anywhere that the service or product provided is truly a public offer. But revealing this is very simple.
- The full name of the product, a description of its characteristics, photos or links to product photos are presented.
- There are contact details, painted payment methods and the exact cost of the product.
- A potential buyer can study the rights and seller's obligations and your own. Including methods and conditions for returning goods.
Only when these obligations are fulfilled, advertising of any product on the Internet is truly considered a public offer.
Public offer in telephony
Many people have repeatedly faced the problem of unauthorized connection by operators of any services.
The most common examples are additions to tariff plans. For example, a client connects a tariff for long-distance calls, and with it every day at exactly eight o’clock a weather forecast is sent to his device. Such a service is paid, and its cost is included in the cost of the tariff. Of course, if it was spelled out in the offer agreement, the client cannot make claims, but in most cases it can disable this addition to the tariff.
The situation is different when the client connected the service accidentally by typing a certain sequence of numbers, and then is forced to pay for it. In this case, you should not immediately blame everything on the company's attempts to earn extra money. There is a contract for such a service, which can be easily terminated at the service center.
And the last option is the automatic connection of any telephony services without client actions, which can be interpreted as acceptance. Tariff connection and a set of numbers is an acceptance in the last two cases. But if the client did nothing, but receives the same weather forecast every day, then such actions of the company can be considered illegal in relation to the client, and they can be brought to arbitration.
Conclusion
A public offer is not such a simple system as it may seem to beginning economists. To be able to distinguish it from simple advertising is an art that is not immediately developed. However, only attentiveness when reading the contracts and knowledge of their rights and obligations is enough to not fall for the tricks of entrepreneurs.
