Offer and advertising – what is the proposal to conclude a contract?

In principle, before any contract, specified as a sales agreement, is concluded, there must first be an interest on the buyer. So, what makes the buyer curious in the subject-matter of the contract – the advertising of the goods or possibly the offer of sale made to it?

Concept of tender

Offer is 1 way of concluding an agreement, which consists in exchanging statements of will of the parties: a proposal to conclude an agreement (offer) and to accept that proposal, that is, to accept it. The offer shall be made by the tenderer who submits the tender, i.e. proposes to conclude the contract to the another party, known as the contract.

In accordance with Article 66. civilian code:

• A declaration to the another organization to the want to conclude the contract shall constitute an offer if it lays down the applicable provisions of that agreement [see paragraph 1];
• If the tenderer has not indicated in the tender the time limit within which the answer will be expected, the tender submitted in the presence of the another organization or by means of a means of direct distance communication shall cease to be binding erstwhile it is not accepted without delay; the tender submitted otherwise ceases to be binding with the expiry of the time during which the tenderer could, in the average course of the action, receive the answer sent without undue hold [see § 2].

The agreement is simply a two-sided civil-law relation consisting of consistent declarations of will aimed at triggering the legal effects of a peculiar content. The provisions of the civilian Code govern the conclusion of the contract by, inter alia:

• acceptance of the tender;
• by invitation to tender;
• negotiations, besides called negotiations.

The above methods do not exclude each other, since in the process of concluding a contract sometimes the methods of negotiating or submitting tenders are utilized alternately. Submission of an offer not accepted by the addressee may initiate negotiations. reverse situations can be encountered when, after the negotiation period, 1 organization makes an offer and the another 1 accepts it.

It is besides worth noting that accepting the most advantageous offer does not mean that the contract has been concluded, only means the work to conclude the contract.

If you want to know what an offer is in electronic commerce, go over here.

It is besides worth drawing attention to the issue of negotiations that usually precede the conclusion of the mark agreement. It should be pointed out that negotiations are mostly conducted upon receipt of the tender and may but request not be conducted.

In accordance with Article 72 of the civilian Code:

• If the parties negociate with a view to concluding the contract, the agreement shall be concluded erstwhile the parties agree on all its provisions which have been the subject of the negotiations [see § 1];
• A organization which has initiated or has conducted negotiations in violation of good manners, in peculiar without the intention of concluding a contract, shall be obliged to make good the harm suffered by the another organization by relying on the conclusion of a contract [cf. § 2].

The jurisprudence expressed a very correct view that Judgment of the ultimate Court of 29 May 2014, Case CSK 396/13each of the methods of concluding the contract provided for in Polish law (offer and its acceptance, auction, tender, negotiation) requires the parties to submit their will in accordance with the principles of their representation. In the case of negotiations, the agreed declarations of intent of the parties to the agreement shall cover all applicable elements covered by the negotiations. The authorisation of a commercial manager to negociate does not mean that, contrary to the rules of representation, he can effectively conclude a contract.

The concept of advertising

The concept of advertising There is no single legal definition in the law, due to the fact that respective laws contain regulations concerning advertising and its understanding, i.e.:

• in the Act of 29 December 1992 on Broadcasting;
• in the Act of 23 August 2007 on the prevention of unfair marketplace practices;
• in the Act on 16 April 1993 on combating unfair competition.

Thus, in accordance with Article 4. point 17 of the Law of 29 December 1992 on Broadcasting and Television, advertising is simply a commercial communication, coming from a public or private entity, in connection with its business or professional activity, aimed at promoting the sale or usage of goods or services, and advertising is besides self-promotion.

In turn, Article 7(5) and (6) of the Act of 23 August 2007 on the prevention of unfair marketplace practices states that the following misleading marketplace practices are unfair marketplace practices under all circumstances:

• an advertising of bait which consists of a proposal to acquisition a product at a certain price, without disclosing that the trader may have reasonable grounds to believe that he will not be able to supply or order from another trader the supply of those or equivalent products at specified price, for specified a period and in specified quantities as are justified, taking into account the product, the scope of the advertising of the product and the price offered;
• an advertisement for bait and replacement which consists of a proposal to acquisition a product at a certain price and then refuses to show consumers the product advertised or refuse to accept orders for the product, or to deliver it within a reasonable time, or to show a defective example of the product, with the intention of promoting another product.

On the another hand, the Law of 16 April 1993 on combating unfair competition, Article 16(1), regulates matters relating to unfair competition. Thus, unfair competition in advertising is in particular:

• advertising contrary to the law, good manners or a deficiency of human dignity;
• advertising misleading the client and which may affect his decision to get the goods or services;
• advertising referring to client feelings through fear, abuse of superstition or kid credulity;
• a message which, by encouraging the acquisition of goods or services, gives the impression of neutral information;
• advertising, which constitutes a crucial interference in the sphere of privacy, in peculiar by solicitation in public places, sending at the customer's expense unsolicited goods or misuse of method media.

In turn, in paragraph 3, the legislator explained that advertising enabling a competitor or goods or services offered by a competitor to be identified straight or indirectly constitutes an act of unfair competition if it is contrary to good practice. Comparative advertising shall not be contrary to good manners if it together meets the following conditions:

• is not misleading advertising;
• in a reliable and verifiable manner on the basis of nonsubjective criteria, compares goods or services gathering the same needs or intended for the same purpose;
• objectively compare 1 or more essential, distinctive, verifiable and typical characteristics of those goods and services to which the price may besides belong;
• does not make confusion on the marketplace between the advertiser and his competitor, either between their goods or services, trade marks, business marks or another distinguishing marks;
• does not discredit the goods, services, activities, trade marks, business marks or another distinguishing indications, and the circumstances concerning the competitor;
• for goods with a protected geographical indication or a protected designation of origin, it shall always mention to goods with the same designation;
• does not unfairly exploit the reputation of a trade mark, the designation of an undertaking or another distinguishing mark of a competitor or the protected geographical indication or protected designation of origin of competing products;
• does not present the goods or services as imitations or imitations of goods or services bearing a protected trade mark, a protected geographical indication or a protected designation of origin or another distinguishing mark.

Comparative advertising relating to a peculiar offer should, depending on the terms of the offer, clearly and unambiguously indicate the date of expiry of that tender or indicate that the tender is valid until the stock of goods is exhausted or the provision of services is ceased and, if the peculiar offer is not yet in force, shall besides indicate the date from which the peculiar price or another peculiar terms of the offer will apply. [see Article 16(4) of the Anti-Unfair Competition Act].

Article 71 of the civilian Code provides that Notices, advertisements, price lists and another information addressed to the general public or to individual persons shall be considered, in case of doubt, not as an offer but as an invitation to conclude a contract.

These activities shall specify the procedure for concluding the contract, starting with invitations to conclude the contract, which may include notices, advertisements, price lists and another information addressed to the public or to individuals. Thus, in view of the above, advertising can be an incentive in the form of an invitation to conclude a contract.

Offer and advertising – differences

In view of the definitions of tender and advertising mentioned above, it should be pointed out that:

• Whereas advertising is an information content, whereas the invitation to conclude the contract must express a circumstantial willingness to conclude the contract;
• Whereas advertising may be switched in any way, e.g. by audiovisual means, whereas the offer must in rule be written and must constitute an offer within the meaning of the provisions of the civilian Code;
• advertising shall be addressed to the public and, in principle, to the circumstantial addressee.

The case law indicates that;

• The relation between the offer and the advertising, taking into account the information origin referred to in Article 71 k.c., may be determined in specified a way that the terms of the offer and the advertising cover 2 meaningfully different, although showing the tangential points of the terms set. In the event of explanation doubts, where they constitute a circumstantial kind of information, they should be considered not as a tender but as an invitation to open negotiations [see the ultimate Administrative Court judgement of 23 September 2009, act mention I FSK 789/08];
• the essential feature of advertising is always information about circumstantial goods, their advantages, values and acquisition possibilities in circumstantial stores, transmitted to an unspecified counterparty and intended to encourage the acquisition of a possible customer. If the offer contains additional data which are not subjectively and materially applicable for the conclusion of the contract erstwhile it uses elements of value that encourage the possible client to acquisition the goods and is aimed at an unspecified counterparty, it is not possible to talk of the offer but of advertising [cf. the ultimate Administrative Court judgement of 18 September 2003, act No I SA/Lu 161/03];
• The correct discrimination between the offer and the invitation to conclude the contract requires an assessment of whether, in a peculiar case, the possible counterparty has been informed of the anticipation and benefits of the contract, or whether a clear proposal to conclude the contract with it has been specified. The first situation will correspond to the invitation to conclude the contract, the second 1 should already be qualified as a tender. The request for an oral explanation of the opinion is simply a power, not a work of the court (Articles 286 and 290 § 1 k.p.c.), but it becomes his work not only erstwhile specified explanations explicitly request the parties, but besides erstwhile the parties rise objections requiring clarification, or erstwhile the court observes shortcomings or illogicalness in a written opinion [cf. ultimate Court judgement of 17 June 2010, No. III CSK 297/09];
• It should not be concluded that the information component in each advertisement prejudges that it may be automatically considered as an offer within the meaning of Article 66(1) k.c. The offer must express a clear willingness to conclude the contract, while advertising must be valued in the form of praise or incentives to acquisition certain products (use of services) of the advertiser. The relation between the offer and the advertising, taking into account the information origin referred to in Article 71 k.c., may be determined in specified a way that the terms of the offer and the advertising cover 2 meaningfully different, although showing the tangential points of the terms set. However, it is clear from the above that, in the event of explanation doubts, where they constitute a peculiar kind of information, they should be treated not as a tender but as an invitation to conclude a contract[see the ultimate Administrative Court judgement of 23 September 2009, Case I FSK 1381/08]

Summary

There is no uncertainty that the offer and advertising disagree from the fact that the offer represents a willingness to conclude the contract, as it clearly clarifies the proposal to conclude the contract and, in turn, the advertising is an invitation to, to encourage its conclusion. The offer is always a message addressed to a circumstantial addressee, which is simply a firm proposal to conclude a contract of circumstantial content. Therefore, an offer within the meaning of the provisions of the civilian Code should be considered as a direct proposal to conclude the contract.

Adrianna Glapiak,
Author of legal texts on ifirma.pl

A lawyer with many years of experience in legal and taxation advisory. On a regular basis, his cognition and experience expands through his work as a specialist in legal affairs, and he devotes his free time to improving qualifications in legal aspects in e-commerce and social media and widely understood copyright law.