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 solicitation 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 solicitation 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 1st, 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
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 French 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": there is indeed a proposal with a reserve, but, nevertheless, it is a pollicitation, because it is a reserve. objective, which does not depend on the will of the solicitor, and in which the arbitrariness of the offeror has no place. As long as the stock is not exhausted, the solicitor must honor the orders he receives.

Irreconcilable offers
Finally, in the event that several irreconcilable offers come from the same person, the offeror cannot choose, at his own discretion, the one that is most advantageous: this would then be a form of auctioning, then that the recipients of this "offer" (which is in fact only an invitation to propose a counter-offer) do not think they are placed in a situation of competition: the recipients then have the legitimate appearance that they are the only recipients of an offer. It is indeed a condition attached to the firmness of the offer, because the one who makes multiple and irreconcilable offers (such as the proposal for the sale of the same good to several determined persons) does not have the intention of.

Externalized offer
The offer is necessarily turned towards someone: it is a manifestation of will, which must be brought to the attention of others. There is therefore no pollicitation unless the proposal to contract is externalized, otherwise, no potential contracting party could accept it for want of having been able to know it. The externalization is in principle express: the offeror must externalize his offer, by any means of communication (in writing (letter, catalog, poster, advertisement, message transmitted by telegram, fax or telex), orally, or even by gestures, as can be the case at the stock exchange or at the auction). In application of the doctrine of consensualism, there is no form required for the declaration of the offer. There is therefore at least one positive and unequivocal fact, and no doubt exists, for witnesses to this fact, on the willingness of the offeror to conclude a contract.

Case law also accepts the tacit offer, that is to say the offer which, without being expressed by mere silence, will be deduced from certain facts which are indicative of the intention to contract: one can deduce of a behavior, of an attitude, which means that one offers to contract, even if there is no positive fact, thanks to the law or to a custom.

An abstention can thus induce an intention to contract. For example, article 1738 of the French Civil Code provides that if at the end of the lease contract, the tenant remains in the premises, it is a tacit offer to renew the lease. It is the same in the tacit renewals of contract: on both sides, we deduce from the silence kept that the old contract was satisfactory, and that it is in the interest of each party to continue it; otherwise, a party would have spoken, and would have expressed an intention to break up. We therefore deduce the will to continue from the absence of the intention to break.

This is also the case of a taxi driver who waits at a station, with his light on: he is in a situation of supply, even if the driver does not perform any positive act to make known his intention to contract. This situation of tacit offer is in fact recognized by usage. Usage also authorizes to say that a vending machine in working order is in a position to make an offer.

The tacit qualifier actually means that the will is not formally expressed. When an offer is tacit, it is always express, in the etymological sense, that is to say expressed: silence alone cannot be considered as a proposal to contract, because a silence is equivocal, and does not want anything to express ; to accept silence as a mode of “expression” would be to establish a form of forced contract. Thus, for authors, there is no truly tacit offer, apart from the situation of the tenant who would remain silent.

Withdrawal of the offer
An offer is a simple proposal to contract, which does not contain any commitment on the part of the offeror. This characteristic of the offer regime is a strangeness of positive law, since the offer, as a legal act, should in principle subject its author to binding force. Now, the soliciting party only offers to contract; he does not undertake to contract, unlike the promisor within a unilateral promise. The principle being that of contractual freedom, the solicitor can therefore withdraw his offer until the recipient of the offer accepts the offer.

However, this principle of free revocability of the offer can lead to risks of legal uncertainty: the offer can be revoked at any time, this can force the recipient of the offer to declare its acceptance of the contract imminently, without taking the time to reflect.

The offender, by this option, would also have the possibility of causing damage without incurring any liability. If an offeror offers a potential buyer to cross France to come and buy a car, for example, when he would have promised him that he would wait for his arrival, but sells the car without waiting for it to a third party, there is an abuse of rights. Case law also knows of examples of potential (and disappointed) buyers who have irreversibly changed their personal legal situation: one terminates his lease and finds himself homeless, the other resigns from his job because he is offered an interesting offer. In this case, the judges may consider that the withdrawal of the pollicitation is abusive; Consequently, the buyer who will have incurred costs to respond to the offer may be reimbursed for the costs (transport, study, etc.) that he may have incurred, or else be compensated for the business that he may have neglected, anticipating the conclusion of the contract.

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.

Offer made to specific persons
According to case law, a "reasonable period", "moral", must always be left to the recipient of the offer. In general, this period is very short, especially in commercial matters, in order to respect the imperatives of speed of transactions, and it is only when it expires that the right of withdrawal can be freely exercised. This reasonable period is left to the sovereign appreciation of the trial judges. As soon as the withdrawal is possible, the applicant is not obliged to notify the recipient of a formal notice: the withdrawal can be made without notifying the recipient, at the expiration of a reasonable period of time.

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
Pollicitation will also be considered to lapse once a certain period has elapsed; however, the problem arises in determining this time limit.

If the offeror had himself specified the period during which his offer survived, he would be committing a fault in withdrawing it, but after this period, any acceptance would be ineffective, because the offer would then have itself disappeared. In this sense, the specified time limit is binding on the author of the offer and the recipient; its expiry renders the offer null and void. It was judged that this lapse could affect the offer the next day.

When the offeror has not specified a deadline, we agree that the offer may implicitly contain a promise of a reasonable, “moral” period, the duration of which is fully appreciated by the trial judges. This solution joins that adopted in article 18-2 of the Vienna Convention, according to which the acceptance of an offer does not take effect if the indication of acquiescence "does not reach the author of the offer within the time limit that it has stipulated or, in the absence of such a stipulation, within a reasonable time, taking into account the circumstances of the transaction and the speed of the means of communication used by the author of the offer”.

However, it would be necessary to differentiate the implicit time limit for maintaining the offer from that of the lapse itself. The reason for these two deadlines is, in fact, different:


 * in the first case, it is a question of knowing whether the offeror committed a fault by withdrawing his offer too early;
 * in the second, we wonder if the offer was still valid and therefore, if the acceptance could have formed the contract.

On the other hand, when a time limit has been expressly specified by the offeror, this distinction does not apply.

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.