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For a contract to be concluded, one of the prospective contracting parties must make a proposal to the other party—an offer.71 An offer is a proposal made to a specific person for the conclusion of a contract, containing all essential elements of the contract. The contract is concluded upon acceptance of the offer.72 Thus, an offer is a unilateral obligation-creating act.73 An offer may cease to be valid due to withdrawal, revocation, cancellation, or expiration of time. An offer can be revoked as long as the other party has not yet accepted it. An offer remains binding until the expiration of the time set for its acceptance.74 If no time limit is specified, the offer binds the offeror for as long as is customary for the offer to reach the recipient, for the recipient to review and decide, and for the response to reach the offeror.

The acceptance of an offer is valid when the offeror receives the declaration of acceptance.75 The silence of the recipient does not constitute acceptance, unless it follows from a custom or an agreement.76 An offer is also accepted if the recipient sends the goods, pays the price, or expresses acceptance through any other conduct that can be regarded as acceptance. However, the rule of identity between acceptance and the offer also applies to acceptance by implied conduct. If the recipient sends a larger or smaller quantity of goods or goods of a different kind, the offer is not considered accepted.77

An acceptance with modifications or a counterproposal for changes or additions is considered a new offer.78

If an offer is made orally, it must be accepted immediately, unless the circumstances indicate that the recipient has some time for consideration.79

The essential elements of an offer are:

  • the offer must express the intent to conclude a contract,
  • be addressed to a specific, identifiable person,
  • contain all essential elements of the future contract,80
  • be made and accepted in the form required by law for the contract itself.81

If an offer does not contain these elements, it is not considered an offer but rather an invitation for the other party to submit an offer for the conclusion of the transaction. If the recipient states that they accept the offer but at the same time propose a change or addition to it, this is considered a rejection of the original offer and a new offer made to the original offeror.82

A proposal addressed to an indefinite number of people that contains all essential elements of a contract (e.g., small ads, catalogues, promotional advertisements) is considered merely an invitation to make offers and not an offer.83 However, displaying goods with a marked price (e.g., in a store) is considered an offer.84

Exercise:

A was selling his Renault Clio on a used car sales website. He posted a photo of the car and listed the price as €2,000.00. Many potential buyers expressed interest. After checking other listings, he realized that the average market price for such a car was €3,000.00. When B called him, stating that he wanted to buy the car, A responded that there had been a mistake and that the actual price was €3,000.00. However, B insisted that the advertised price was valid and that the contract had already been concluded.85

Does B have a valid claim?

 

71 Cepec, Kovač, 2023, p. 146.
72 Cf. Art. 22(1) of OZ.
73 Kranjc in Plavšak, Juhart, 2003, Vol. 1, p. 237.
74 Cf. Art. 26 of OZ.
75 For more details on the forms of offer acceptance, see Kranjc in Plavšak, Juhart, 2003, Vol. 1, pp. 252–253 and 258.
76 Cf. Art. 30 of OZ.
77 Kranjc in Plavšak, Juhart, 2003, Vol. 1, p. 253.
78 Cf. Art. 29(1) of OZ.
79 See Art. 26(4) of OZ.
80 The subsidiary elements of a contract can be agreed upon by the parties at a later stage. Cf. Art. 22(2) of the OZ.
81 See Art. 27 of the OZ. For more details, see Kranjc in Plavšak, Juhart, 2003, Vol. 1, p. 238.
82 See Art. 29(1) of the OZ.
83 Cf. Art. 22(3) of the OZ.
84 Cf. Art. 23 of the OZ.
85 Ovčak Kos, 2017, p. 56.

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