“Information is not a public offer!” - Often we hear this phrase in advertisements on the radio and see it on TV. The first thing that comes to many minds is that “pitfalls” are hiding somewhere or they are deceiving us and are not negotiating something. In fact, such thoughts are not far from the truth. In the article we will answer the question about what it means "is not a public offer." And also we will talk about for what purposes this phrase is needed in advertising messages and what will happen if it is not used.
The concept
So, we saw or heard the phrase "is not a public offer." What does it mean? First you need to parse the concept itself.
Offer - an offer by one of the parties to make a purchase to the other side. This is how Russian legislation interprets this concept. In other words, an offer is an offer of a seller (offerer) to a buyer (acceptor).
An acceptor may not necessarily be one person. Under this concept, the Civil Code also implies an unlimited circle of persons. It is the latter circumstance that gives such a concept as a public offer. Let's analyze it in more detail.
What is a public offer?
Under what conditions is the offer not a public offer? You can answer this question from the definition.
A public offer is an offer of goods in its advertising, catalogs and descriptions addressed to an indefinite circle of persons, if it contains all the conditions of a retail sale contract.
For example, you saw a catalog with cosmetics. It contains all the information about the product: price, characteristics, composition. You responded to the offer, but you received a response from the manufacturer: “we apologize, but this offer is not a public offer”. Further, you will find out that the manufacturer is testing the price of new products on the market, and he realized that the originally declared price is lower than the price at which he could sell it.
In this example, the phrase “offers are not a public offer” will not help him. Art. 494 of the Civil Code obliges the seller to complete a transaction with anyone. In this case, you can safely apply to Rospotrebnadzor and the court for compensation for moral damage.
However, it is worth noting that if the seller refers to the limitation of the goods, then in this case it is useless to contact the regulatory authorities and the court. The seller will not be liable in the event that the goods have simply ended in warehouses. Therefore, you may receive an answer with an apology that there is simply no such product from the catalog, despite the fact that no one was going to sell it to you. It will be extremely difficult to prove the opposite.
Signs of a public offer
Sometimes the explanation “is not a public offer” is unlawful. Article 437, Part 1 of the Civil Code gives us clear offer parameters:
- the availability of all material terms of the agreement in the information;
- the advertiser's explicit desire to sign an agreement with everyone on the indicated terms;
- unlimited circle of persons.
For example, if there is an advertisement in the advertisement: “we give the second one to the same refrigerator for anyone who buys the first one”, then in this case the information can be classified as a public offer, and not as an announcement of an informational nature, even though somewhere and there will be a warning sign to the contrary.
Public offer in retail stores
Almost all people go to ordinary shops for shopping. Goods on store shelves are a vivid example of a public offer, even though there are no price tags on them. However, this rule has one very significant exception: if the seller independently determined that the product is not subject to sale, then it will not be possible to buy it.
Is the price a public offer?
There is one sore point in many shopping centers - the discrepancy between the real price and the declared one. In other words, you take the goods for 50 rubles, and at the checkout you are told that a revaluation occurred in the morning, and the employees did not have time to change the price tags. Now this product costs 60 rubles. This situation often happens at every step. Sometimes, such disagreements between the seller and the buyer are resolved by the world, but there are also conflicts on this basis. Often the cashiers themselves aggravate the situation, claiming that prices are not a public offer. In fact, this is not so: prices, according to the Civil Code of the Russian Federation, are a documented proposal. If the seller set the condition for the sale of goods - the price, then he is simply obliged to sell it under this condition (price).
Advertising and public offer: what is the difference?
Many citizens cannot distinguish regular advertising from a public offer. These are different things. And not always the phrase "public offer is not an offer" is legal and reasonable. Also, the absence of such a phrase does not mean the opposite. Let's analyze it in more detail.
Advertising - an information offer is information of an educational nature in order to convey to the mass user primary characteristics. They may not contain the inscription "is not a public offer." However, this will not mean that the seller is obliged to fulfill everything that he promised. As a rule, advertisers are often reinsured, as court practice shows that courts often punish dishonest ones.
We give an example. In advertising, you can see information about discounts on products up to 90%. Such a marketing move is no longer news. Many have already learned to block such information at a subconscious level. Here is the keyword “Do.” It means that up to 90% is both 1% and 89%. Even if the store will have one chewing gum with a discount of 90% - that’s basically what marketers do, the seller already has the right to write such an ad in all the windows.
Let's look at another price-related example. Outlets can write something like the following on street posters: “Only three days! Cabbage at 6 rubles per kilogram. ” This price serves as an offer to visit the store and try to purchase a vegetable at the declared price. However, in practice, the store brings only a few kilograms of a certain grade of goods, and it is usually disassembled within one hour. All other cabbage of a different grade lies at quite market prices. And there is nothing left for the arriving buyer to do except to purchase goods at the current price, at the same time buying something else and simultaneously scolding the store with bad words for false promises.
Online stores
Information, including prices in the online store, is not a public offer. This is due to the fact that the sites do not indicate specific conditions, for example, the term for the transfer of goods, delivery conditions, etc.
An online store is not an ordinary store in which a customer can enter, take goods, pay for it and leave. Selling in it involves a number of actions: accepting an order, preparing, paying, sending, receiving. Therefore, the price in online stores, like any other information on it, is not a public offer. It may depend on the conditions of the transport company, on an individual discount, on the method of payment, etc.
What action in the online store will be considered an offer?
Despite the fact that the price on the window of an online store is not a public offer, this does not mean that buyers do not have any rights. After site visitors select a product in the basket, a link to place an order appears. It is here, as a rule, that the entire final purchase price is indicated, as well as additional conditions: calculation, delivery time, guarantees, return methods, etc. By clicking on the "place order" button in the online store, both parties sign an agreement, which will be interpreted as an offer. Further, one side must pay for the order, and the second - to fulfill the conditions for its transportation.
What can the indication “is not a public offer” mean?
So, we have covered the concept of a public offer. They gave examples with explanations. Now we will analyze in practice. Suppose we saw the inscription "is not a public offer." What does this mean for consumers? In practice, this may mean the following:
- It is likely that the consumer will not be able to make a purchase on the terms that have been announced. You need to understand that advertising is just information that only encourages people to visit the advertiser’s outlet. She does not bear any obligation to conclude a contract for the latter.
- Conditions are usually designed for a limited circle of people. This is usually written in small print that no one reads. For example, if the advertisement says the following information: “approve a loan at 13.9% per annum”, then you can definitely read the whole list of conditions below. This is the down payment, and the maximum loan term, and the minimum income of the borrower, etc.
Violation of the offer
An offer is a contract. By agreeing to it, each of the parties becomes a party to the transaction. If it is not observed, the law on the public offer is violated. The defendant may be held liable in accordance with the Civil Code of the Russian Federation. For buyers, this violation usually leads to the termination of the transaction, and this all ends. But for the seller, a violation of the public offer can lead to significant fines on the part of regulatory authorities, as well as to compensation for non-pecuniary damage and other negative damage that is possible if it is not observed. Therefore, we advise novice owners of online stores to be very attentive to their responsibilities and comply with all conditions of a public offer.