Draft:Pollicitation in French civil law

The term pollicitation takes its origin from Roman law, where it corresponded to a promise of donation made by a candidate for a municipal magistracy. Nowadays, in French civil law, the pollicitation or offer is the fact of proposing the conclusion of a contract.

In a broad sense, the contract offer can simply be a proposal to perform a contract. However, the law makes a distinction between the two expressions, the proposal to contract not being subject to the same legal regime. An offer is a pollicitation only if a pure and simple affirmative answer (acceptance), is enough to create a contract between the two parties. In other cases, this offer will be disqualified as a proposal to enter into negotiations or call for tenders.

Indeed, in a strict legal sense, as understood by the French doctrine, the definition is more “narrow”, and designates a firm proposal to conclude, under specific conditions, a contract, in such a manner, that its acceptance is sufficient for its formation. However, some authors relativize the distinction between offer and pollicitation, and consider these two terms synonymous, while admitting that pollicitation, understood in the strict sense, has a greater legal force than the offer.

This definition has been taken up in recent legal instruments like article 14, paragraph 1^st, of the Vienna Convention of the United Nations of 11 April 1980, the UNIDROIT Principles relating to international commercial contracts and the principles of European contract law. The definition in Common law, and in the Civil Code of Quebec is also substantially identical.

Pollicitation is no longer the only way to conclude a contract: legal practices have evolved, in particular with the development of preliminary contracts, the membership contract or the practice of punctation. The Civil Code refuses, in the name of freedom of contract: whoever is free to make an offer (or not) is also free to withdraw it. Symmetrically, if a condition, which was necessary for the pollicitation to exist, disappears (loss of legal capacity of the contributor, death, etc.), the pollicitation becomes null and void.

The notion of solicitation retains an important practical interest: if there was no real offer, there was no contract, and therefore, no contractual obligation exists between the parties.

Thus, for the French positive law, the pollicitation is a proposal to contract, exteriorized, showing the will to be engaged in the event of acceptance for the essential elements of the future contract. A pollicitation can be withdrawn as long as it is not accepted by the recipient of the offer; otherwise, it is faulty or abusive. Finally, if the pollicitation lapses, if the pollicitant dies or becomes legally incapable, it disappears.

Nature of the offer

The offer to contract is a firm and precise proposal to conclude a specific contract under specific conditions.

According to the preliminary Catalan project, it is a unilateral act determining the essential elements of the contract, that its author proposes at a fixed or indeterminate level, and by which he expresses his will to contract if acceptance.

The offer must be firm, precise and unambiguous.

Required characters

The offer must have each of these characteristics in order to be legally qualified as pollicitation. These characteristics, without which no pollicitation can exist, are sometimes referred to as “constitutive elements”.

Specific offer

"A proposal is sufficiently precise when it designates the goods and, expressly or implicitly, fixes the quantity and the price or gives indications making it possible to determine them.

— Article 14-1 of the United Nations Convention on the International Sale of Goods

The French common law of contracts retains a similar idea, although the Vienna Convention is only concerned with special contracts.

According to Pothier, the essential elements are those "without which it would be impossible to know what sort of agreement has been concluded". The offer must include the essential elements of the planned contract, i.e. allowing it to be carried out.

However, the determination of the essential elements, which must appear in the offer, and those which may be absent because they are only ancillary, will depend on the contract considered. It is necessary to distinguish, according to the authors, between a contract which would be "named", that is to say which has a legal regime which is specific to it, or which would be unnamed, without a legal regime which can provide additional details.

Named contracts

Without the indication of the price, the sales contract cannot be formed.

If the contract is named, that is to say that it is specially regulated by a legal text, this text will itself determine what will be the essential elements of the contract. Without the indication of the price, the sales contract cannot be formed.

Thus, the sale, which is a named contract, is “perfect [...] as soon as the thing and the price have been agreed”. It is then not requested, neither that the thing has been delivered, nor that the price has been paid: it is sufficient that the parties agree on these two essential points for the contract to be formed.

For the lease contract, which is also a named contract, the offer must mention the item rented and the amount of the rent.

Nameless contracts

In this hypothesis, the degree of precision is “rather vague”: if the contract is not named by a special legal text, nothing determines a priori the essential elements of the contract. It is then the judge who will have to determine on a case-by-case basis what will be the essential elements of each contract.

The Court of Cassation, in a series of case law relating to the problem of the indeterminacy of the price, has also ruled that the “reference to a price” could suffice to give an offer sufficient precision, except for abuse and 'illegitimate profit'.

Place left to the parties

The judge will sometimes have to qualify certain contractual obligations as main, while others will be ancillary. The first will be fundamental so that the contract can be really formed, the second having for object only to determine, in particular, the methods of execution of the first obligations: the accessory obligations are not therefore essential elements of the contract.

Place left to the nature of the contract

In some contracts, the custom is not to fix the price beforehand, when the contract is formed.

This is particularly the case with business contracts and the power of attorney. Likewise, the proposal of a jeweller who wished to modify the ceiling of his insurance contract, for the “lowest possible” premium was considered sufficiently precise, and therefore deserves the qualification of pollicitation.

Electronic contracts

Article 1369-4 of the French Civil Code provides that the offer must have a certain content, which falls within the nature of electronic transactions. The electronic offer must therefore include:

• The technical means allowing the user, before the conclusion of the contract, to identify errors made in entering data and to correct them;
• The languages ​​offered for the conclusion of the contract;
• In case of archiving of the contract, the terms of this archiving by the author of the offer and the conditions of access to the archived contract;
• The means of consulting by electronic means the professional and commercial rules to which the author of the offer intends, if applicable, to abide by.

However, this only concerns consumer law relations, between consumers and professionals, since only professionals who offer “the supply of goods or the provision of services” are obliged to provide an offer with this particular minimum content. It is not in the proper sense of a condition of precision, but of a minimum content, imposed by the legislator; it is a condition of validity of the offer, and not a condition of its existence: the offer by electronic means must always propose the essential elements of the contract.

Firm offer

The offer must be firm, that is to say, not have been formulated "lightly": the offeror must have intended to be bound by his proposal, to be bound in the event of acceptance. The applicant therefore accepts that the formation of the contract no longer depends on him. If this character is not fulfilled, it will be an invitation to enter into negotiations, in order to initiate a negotiation, on the content of the future contract, and no longer a solicitation.

For example, the proposition to sell a car at a fixed price could be considered as a pollicitation, and its author will be obliged to sell this car to the person who will agree to pay this price immediately, since:

• the purchaser will not have been decisive (characteristic of an intuitu personae contract);
• the author of the proposal will not be able to find a legitimate excuse to be bound (if he does not find a legitimate excuse, it could be a refusal to sell; a legitimate excuse will be, for example, manifest insolvency of buyer).

Reservation

A reservation is a limitation imposed by the author of a proposal on their willingness to enter into a contract. It can be explicit or implicit and may relate to the very principle of the contract, the contracting party’s identity (as seen in “classified ads” in newspapers), or the contract’s terms (such as “price negotiable”). However, the existence of a reservation limits the firmness of the offer, and the doctrine has questioned the reservations which could be compatible with a firm pollicitation, and other reservations which would lead to the disqualification of the pollicitation in invitation to enter into negotiations.

The assessment of the condition of firmness is finally done on a case-by-case basis, taking into account mainly:

• terms of the proposal, more or less revealing of the scope of the commitment;
• the recipient of the offer (an offer to a specific person is generally firmer than an offer made to the public)
• the nature of the contract envisaged (the more a contract is intuitu personæ, that is to say the more the consideration of the person is important, the more it can be assumed that the offeror has reserved the possibility of agreeing to his partner).

Disqualifying reservations

In principle, any offer which authorizes its author to withdraw it is not a solicitation, but an invitation to enter into negotiations.

It could be an express reservation of approval such as that which indicates that the proposal is "subject to confirmation", the seller retaining, for example, the possibility, after the signature of the buyer, to notify his refusal, or subordinating its commitment to the signature of the managing director of the company: there is no desire to be bound in the event of acceptance, and there is therefore an invitation to enter into negotiations; the recipient of the initial offer is in fact invited to propose a second offer, which may or may not be accepted.

Reservations naturally exist in a contract intuitu personæ. This is the case with the employment contract: the recruiter makes a proposal with sufficiently precise elements, but he reserves the right to approve the person he will recruit and with whom he will contract: he obviously arrogates to himself a right of reserve, legitimate, and is not obliged to hire the first candidate come, even if he satisfies the precise criteria of his offer. The “job offers” that we find in newspapers are therefore not offers, but invitations to enter into negotiations.

In the case of a credit offer, the issuer (a bank, for example) must be able to assess the creditworthiness of the acceptor. In these cases, it is even considered that it is not the one who takes the initiative of the contractual process who will be the initiator, but the one who responded to this advance: it is therefore the one who wishes to be granted a credit that makes an offer.

Non-disqualifying reservations

Authors often cite the example of an advertisement for the sale of a product "while stocks last." This indeed constitutes a proposal with a condition, but it remains a pollicitation because the condition—availability of stock—is objective and does not depend on the will of the offeror. There is no room for arbitrariness on the part of the offeror. As long as the stock is not exhausted, the offeror is obliged to honor the orders received.

Irreconcilable offers

In the case where several conflicting offers originate from the same individual, the offeror cannot arbitrarily select the most advantageous one. This scenario would resemble an auction, where the recipients of this "offer" (which is essentially just an invitation to make a counter-offer) do not perceive themselves as being in competition. The recipients have the legitimate expectation that they are the sole recipients of an offer. This condition relates to the firmness of the offer, as the one making multiple and conflicting offers (such as the proposal to sell the same item to several specific individuals) does not intend to bind themselves.

Externalized offer

An example of exteriorization of an offer: signs that give the price of fish for sale.

The offer is necessarily directed towards someone; it is a manifestation of will that must be communicated to others. There is no pollicitation unless the proposal to contract is externalized, as no potential contracting party could accept it without knowing it. The externalization is typically express: the offeror must externalize their offer through any means of communication. According to the doctrine of consensualism, there is no required form for declaring an offer. There must be at least one positive and unequivocal act, leaving no doubt about the offeror's willingness to conclude a contract.

Abstention can thus indicate an intention to contract. For example, Article 1738 of the French Civil Code states that if a tenant remains on the premises at the end of a lease contract, it is a tacit offer to renew the lease. The same applies to tacit renewals of contracts; both parties deduce from the continued silence that the old contract was satisfactory and that it is in their interest to continue it. Otherwise, a party would have spoken and expressed an intention to terminate. We deduce the intention to continue from the absence of an intention to terminate.

A tacit offer is recognized by usage. Usage also permits the notion that a functioning vending machine is in a position to make an offer. The term "tacit" indicates that the will is not formally expressed. When an offer is tacit, it is always expressed in some form. Silence alone cannot be considered a proposal to contract, as silence is ambiguous and does not express anything. Accepting silence as a mode of "expression" would establish a form of forced contract. Thus, for authors, there is no truly tacit offer, except for situations such as a tenant remaining silent.

Supply regime

Withdrawal of the offer

An offer constitutes a proposal to enter into a contract without imposing an immediate obligation upon the offeror. This aspect of contract law may appear counterintuitive, as one might expect that initiating a legal act would inherently bind the offeror. However, the offeror merely suggests the formation of a contract and retains the discretion to withdraw the offer prior to the offeree's acceptance, in accordance with the principle of contractual freedom.

The principle of free revocability of offers can introduce legal uncertainty. Since an offer may be revoked at any moment before acceptance, the offeree might feel compelled to accept hastily, foregoing adequate deliberation. Moreover, the offeror's ability to retract the offer without consequence could potentially lead to situations where the offeree suffers detriment without recourse.

For instance, if an offeror invites a potential buyer to travel a considerable distance to purchase an item, assuring them that the offer will remain open, but subsequently sells the item to another party before the buyer's arrival, this could be deemed an abuse of rights. Jurisprudence has documented cases where offerees, relying on an offer, have made irreversible changes to their personal circumstances—such as terminating a lease or resigning from employment—only to face unexpected revocation of the offer. In such scenarios, courts may determine that the offeror's revocation was abusive. Consequently, the offeree may be entitled to reimbursement for expenses incurred in reliance on the offer or compensation for opportunities forgone in anticipation of the contract's formation.

Legal scholars have examined the complexities surrounding the revocation of offers and the potential for abuse. For example, in "Some Problems of Revocation and Termination of Offers," the author discusses situations where an offeror's revocation, even if communicated directly, may be ineffective if the offeree proceeds with performance and the offeror remains silent, implying consent to the continuation of the offer.

Offer not yet communicated

For some authors, case law has reduced the scope of the principle of free revocability of the offer to such an extent that, in reality, it only fully comes into play when the offer has not yet been communicated to the recipient. However, this hypothesis, which does not suffer from any difficulty, remains marginal. The solicitor can in fact always interrupt the transmission (in which case, the recipient of the offer will never have known that he was), or deny his offer by a faster means of communication.

When the offer has reached its recipient, the temperaments multiply.

Temperament of principle

Doctrine and case-law agree to adjust the principle of free revocability of the offer communicated to its recipient. The offer, in fact, may be accompanied by a period during which its maintenance is necessary since the prospective acceptor must have time to examine the proposal sent to him, to make up his mind and to respond to it.

By extension, when the solicitor has not specified a period during which his offer was still valid, case law grants the recipient of the offer a reasonable period of time, for legal security considerations.

Specified timeframe

In the event that a deadline has been specified, the withdrawal of the offer is faulty.

If it is the solicitor sets this period precisely, he is obliged to maintain his offer until the expiry of this period. If he retracts his offer, even though he will have promised that he will maintain it, the tort liability of the solicitor may be engaged, on the basis of article 1382 of the Civil Code, up to all the damages that this withdrawal may have caused the recipient of the offer to suffer. On the other hand, the judges refuse to pronounce the conclusion of the contract ex officio, in particular in order to respect the doctrine of the autonomy of the will.

If it is the law which fixes the time limit, the revocation of the offer is also faulty. However, some authors have seen in this hypothesis the possibility that the acceptance, subsequent to the early revocation, but which would be formulated before the end of the legal period for maintaining the offer, could form the contract, even if the applicant, in revoking his offer, signified his refusal to contract. It would not be a matter of a promise of contract, but of a particular offer, to which the law simply attaches the particular obligation to maintain it for a certain period.

Deadline not determined

When no time limit has been specified, a distinction must be made, conventionally, according to whether the offer was made to the public or to a specific person. However, this distinction is questioned, and must certainly be put into perspective. This time limit is fully appreciated by the judges on the merits, and the Court of Cassation may invite them, by means of an appeal in cassation, by invoking a lack of response to the conclusions, to determine whether "the offer does not implicitly include reasonable acceptance”.

Offer made to the public

The offer made to the public without indication of a deadline will be freely revocable. This opinion is in line with article 14-2 of the Vienna Convention which considers that in this case there is a simple invitation to the offer and not a genuine offer.

Legal foundations

Several foundations have been put forward to explain this obligation to maintain the supply over time, which is apparently contradictory with the theory of the autonomy of the will: what we have done, we must be able to undo it freely. Some authors will therefore seek a basis in the tradition of French law, which considers that only the contract and the responsibility are sources of legal obligations. Others, on the other hand, break with this tradition by creating a third source of legal obligation: oneself.

Theory of the pre-contract

The theory of the pre-contract was advanced by Demolombe. If a solicitor issues an offer specifying that he will maintain it for a specified period, there are actually two offers: the first, which determines the content of the future contract, the second, which proposes to maintain the initial offer for a period of time. As this ancillary offer only presented advantages for the recipient, it could be assumed that the recipient tacitly accepted it. It is therefore a preliminary contract that has been formed, which obliges the solicitor to maintain its offer for the duration indicated. According to this doctrine, if no time limit is stipulated, it is presumed that the solicitor wished to give time to reflect: there is therefore an implicit offer of time.

This foundation has been criticized for its largely artificial nature: if the silence of the recipient of the offer implies acceptance of it, when it is made for the exclusive benefit of the recipient, the resulting contract must not be a fiction. This basis is only valid if there is really an agreement to maintain the offer for a certain period. The explanation proposed by Demolombe "illustrates wonderfully the exaggerations of the theory of the autonomy of the will".

Public liability

For other authors, it is necessary to appeal to civil liability: this solution comes moreover from the tradition of Pothier, who derived the obligation of the contributor from a rule of equity, which requires that "no one must not suffer because of another”. For these authors, the withdrawal of the offer constitutes a fault, causing damage to the recipient of the offer. The solicitor remedies this fault by means of damages, or by compensation in kind by deciding that the contract is concluded, despite the withdrawal of the offer.

However, there is only fault if there is a pre-existing obligation, which is precisely what one seeks to demonstrate; however, these authors appeal to the theory of abuse of rights: the offer creates in the mind of the recipient a legitimate expectation, the hope of a contract, which its premature withdrawal disappoints. However, the requirement of legal certainty inherent in business dealings, requires no mistake legitimate expectations of the corresponding.

Theory of unilateral engagement

Some authors oppose the idea of ​​a free revocability of the offer, and defend in particular the theory of unilateral commitment, which prohibits the author of an offer from being able to withdraw it, the offer being separated of its author and enjoying autonomy in relation to it: the offer then becomes, in itself, a source of obligations. French law however accepts only the law, the contract, the quasi-contract , the misdemeanor and the quasi-delict as sources of obligations, and not the only offer, with a view to carrying out a contract. This theory has never been enshrined in French positive law.

On the other hand, it is retained by German civil law: the German Civil Code (Bürgerliches Gesetzbuch), provides, in §145:

“Whoever offers to enter into a contract with others is bound by the offer, unless he has excluded this obligatory link."

— BGB, § 145 Bindung an den Antrag

It follows that the author of the offer must maintain it for a period varying according to the circumstances, and that the death or incapacity of the offeror occurring after the issuance of the offer does not prevent the acceptance of the offer: it survives its author, it has an independent legal existence. However, a certain place is left to the theory of the autonomy of the will, since the offeror can reserve a right of withdrawal, on the condition that it is explicit. In French law, certain authors have proposed a dualist analysis: the solicitor would only be bound by a unilateral declaration of will when he has undertaken to maintain an offer for a determined period; otherwise, the theory of civil liability operates.

Other legal instruments

The UNIDROIT principles also describe a regime for the withdrawal of offer, shared by the principles of European contract law, by creating a statute for an explicitly irrevocable offer, approaching the solution in French law, since the offer accompanied by a deadline by the solicitor is irrevocable, during this period.

Termination of the offer

The offer is qualified as null and void when an element necessary for it to be so qualified disappears after it has been made. As soon as this element disappears, the offer ceases to have any effect, regardless of the will of the contributor.

Acceptance

In the first place, we can say that the offer is null and void from the moment it is accepted. More particularly, when the offer is addressed to the public, but can only give rise to a single contract, the first acceptance renders the offer null and void with regard to other possible acceptors: it is in fact impossible to make it survive the offer.

Elapsed time

An offer (pollicitation) is considered lapsed once a certain period has passed. Determining this period, however, presents a complex legal issue. If the offeror explicitly specifies the duration for which the offer remains valid, they would be at fault for withdrawing the offer prematurely. Conversely, once the specified period expires, any subsequent acceptance would be ineffective as the offer would have ceased to exist. This rule implies that the specified timeframe binds both the offeror and the offeree, with the expiration of this period rendering the offer null. Judicial precedent has affirmed that such nullification may occur as early as the following day.

If no explicit timeframe is set for an offer, it is assumed to include a reasonable period for acceptance, determined by the court based on the context. This aligns with Article 18(2) of the CISG, which deems an acceptance ineffective if it is not communicated within the stipulated or, in its absence, a reasonable time, considering the transaction's circumstances and communication speed.

However, it is essential to distinguish between the timeframe during which an offer must be maintained and the period after which it lapses. The rationale for these two timelines is distinct:

• Maintenance period: Addresses whether the offeror acted wrongfully by withdrawing the offer prematurely.
• Lapse period: Examines whether the offer was still valid at the time of acceptance and, therefore, whether a contract was formed.

Loss of capacity, death

Under French law, the offer finally becomes null and void in the event of the death or incapacity of the offeror.

If the offer is therefore null and void, since the consent of the parties to a sale is not subject to any formal condition, the trial judges must determine whether the purchaser has given his consent, before the seller's death.

However, in a judgment dated June 25, 2014, the Court of Cassation considered that "the offer which is not accompanied by a deadline lapses by the death of the one from whom it emanates before it has been accepted". The Court distinguished between fixed-term offers and open-ended offers. When the offer is for an indefinite period, the offeror's will to contract ceases with his death: the offer is therefore null and void. Conversely, when the offer is accompanied by a deadline, it remains valid at least until the end of this period, the death of the offeror does not change the validity of the offer.

Notes and References

Bibliography

• Terré, François; Simler, Philippe; Lequette, Yves (2013). Droit civil : les obligations (in French) (11th ed.). Paris. p. 132. ISBN 978-2-247-13212-6. OCLC 887697720.{{cite book}}: CS1 maint: location missing publisher (link)
• Fabre-Magnan, Muriel (2004). Les obligations (in French). Presses Universitaires de France. ISBN 9782130503927.