Business Contracts

According to Article 1114 of the Civil Code, an offer, also known as a “pollicitation”, must express firmly and precisely the author's intention to be bound in the event of acceptance. It may be made to a specific or unspecified person, but must include the essential elements of the agreement envisaged, failing which there is only an invitation to enter into negotiations.
As the sale is a consensu …

Characteristics

According to Article 1114 of the Civil Code, an offer, also known as a “pollicitation”, must express firmly and precisely the author's intention to be bound in the event of acceptance. It may be made to a specific or unspecified person, but must include the essential elements of the agreement envisaged, failing which there is only an invitation to enter into negotiations.

As the sale is a consensual agreement, no specific form is imposed on the offer. It may result from a declaration or unequivocal behavior on the part of the latter (Art. 1113, al. 2, Civil Code).  This is the case of a letter accompanied by a contractual document, sent by the owner of a selective distribution network to a candidate . It is both necessary and sufficient for the offer to have been brought to the attention of potential co-contractors, whether or not they have been identified. In effect, an offer made to the public binds the offeror to the first acceptor under the same conditions as an offer made to a specific person .

In order to be classified as an offer, a proposal to enter into a contract must be firm, and the offeror must, by virtue of Article 1114 of the Civil Code, express his or her intention to be bound in the event of acceptance . The offeror must therefore have an irrevocable intention to conclude the sale (Art. 1114 Civil Code).

The offeror's intention to be bound in the event of acceptance of the offer implies that no subsequent confirmation of this intention is necessary, or that it is not subject to any reservation. Consequently, an offeror who indicates that the terms of the sale will be defined after acceptance is not expressing his firm intention to be bound in the event of acceptance . The same applies to contracts concluded intuitu personae, where the offeror leaves open the possibility of reserving the offer to certain persons only . However, a reservation may not constitute an obstacle to the conclusion of the sale, particularly when it does not give the offeror the possibility of evading the undertaking to sell , or when it does not require a new expression of intent on his or her part.

The offer must also be precise, and contain the essential elements of the proposed contract, which in the case of a sale are, in accordance with Article 1583 of the Civil Code, the thing and the price. Article 1591 requires the price to be determined and designated by the parties. Consequently, the sale is only complete if the contract makes it possible, on the basis of the stipulations it contains, to determine the price by elements that do not depend on the will of one of the parties or on the implementation of subsequent agreements . If the offer is unclear, it falls within the scope of contractual negotiations, despite its acceptance . On the other hand, the parties' agreement on the essential elements is sufficient to establish the concurrence of wills, even if discussions continue to settle ancillary details .

The obligation to specify the terms and conditions of the offer may give rise to difficulties in the case of contracts concluded by electronic means. The legislature has addressed this issue. Since Ordinance 2016-131, the Civil Code has included specific provisions for this form of contract in Articles 1125 to 1127-4. In particular, Article 1127-2, paragraph 1, states that “the contract is validly concluded only if the recipient of the offer has had the opportunity to verify the details of the order and the total price and to correct any errors before confirming it to express his or her firm acceptance”.

Cass. com. 29 June 1993, LawLex200200006014JBJ.

Cass. 3e civ, 12 February 1975, LawLex202300002953JBJ.

See Cass. com. 6 March 1990, LawLex202200001936JBJ.

Cass. 3e civ, 11 May 2023, LawLex202300007327JBJ.

The most typical examples are employment contracts, credit agreements, etc.

A precise and firm proposal to sell stock may be classified as an offer, even if it contains the proviso “while stocks last”.

Cass. com. 25 September 2012, LawLex202300000261JBJ.  For an offer to sell containing restrictions on the use of the premises, see Cass. 3e civ. 30 May 1996, LawLex202100006409JBJ.

Cass. com, 28 February 2006, LawLex202200002256JBJ.

Business Contracts

111. Characteristics

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111. Characteristics

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Les notions juridiques connexes

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