Commentary on Art. 437 of the Civil Code of the Russian Federation
1. The commented article refers to proposals to conclude contracts addressed to an indefinite circle of persons. There are many such proposals in various forms. They are distributed through television, radio, newspapers, through exhibitions, etc. and so on.
Advertising stands out. Advertising is information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the object of advertising, generating or maintaining interest in it and promoting it on the market (Article 3 of the Federal Law "On Advertising "). Naturally, the article under consideration refers only to advertising containing a proposal to conclude contracts.
2. According to the general rule formulated in clause 1 of the commented article, proposals for the conclusion of contracts addressed to an indefinite circle of persons are not considered offers. This norm corresponds to the norm contained in paragraph 1 of Art. 435 of the Civil Code of the Russian Federation, by virtue of which an offer is recognized as an offer addressed to one or more specific persons.
Offers addressed to an indefinite circle of persons qualify as an invitation to make offers. A response to such a proposal, containing consent to conclude an agreement, is an offer, of course, if it meets all the requirements for an offer (clause 1, article 435 of the Civil Code).
The proposal itself, addressed to an indefinite circle of persons, may provide otherwise. Usually this “other” consists in the fact that a public offer is being made.
3. The definition of a public offer is given in paragraph 2 of the article in question. At the same time, it should be borne in mind that the public offer must meet all the features of the offer specified in Art. 435 of the Civil Code of the Russian Federation. Its only difference is that it is addressed to an indefinite circle of people. Accordingly, it expresses the will of the offeror to conclude an agreement with anyone who responds.
A classic example of a public offer is trading with automatic machines. IN last years the scope of use of the public offer has expanded significantly (in particular, see to it).
Sufficiently detailed rules on a public offer are provided for retail sales. In accordance with Art. 494 of the Civil Code of the Russian Federation, the offer of goods in its advertising, catalogs and descriptions of goods addressed to an indefinite circle of persons is recognized as a public offer if it contains all the essential terms of the retail sale contract. The display of goods at the point of sale (on shelves, showcases, etc.), the demonstration of their samples or the provision of information about the goods being sold (descriptions, catalogs, photographs of goods, etc.) at the place of their sale is recognized as a public offer, regardless of whether whether the price and other essential terms of the retail sale contract are specified, unless the seller has expressly determined that the goods in question are not intended for sale.
Comments to Art. 437 of the Civil Code of the Russian Federation
1. The article distinguishes between sentences general, which, as a rule, are not an offer, but an invitation to an offer (clause 1), and an offer to an indefinite circle of persons containing all the essential terms of the contract, which is recognized as a public offer (clause 2).
2. The advertising referred to in paragraph 1 of the article may be carried out in different form primarily by sending out brochures, catalogues, placing advertisements in the press, etc. Typically, such information does not contain the essential terms of the contract and is not an offer. However, when specifying the subject of advertising and the price in the catalog (for example, books, clothes, etc.), such an offer, according to the rules of paragraph 2 of Art. 437 should be considered an offer.
3. By virtue of paragraph 2, an offer to an indefinite circle of persons expressing the will of the person who made it to conclude an agreement and containing all the essential terms of the agreement is an offer, which the Civil Code calls public. A public offer is possible both in writing and orally (on radio, television, through a microphone, etc.), however, it must contain the essential terms of the contract.
4. Acceptance of a public offer (its acceptance) creates an agreement and gives rise to an obligation to fulfill it, in case of violation of which liability arises according to the general rules of Ch. 25 GK.
Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.
You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.
Game? Wrong word. Right word"imprinting".
A newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living beings with vision.
Newborns in the USSR for the first few days saw their mother for a minimum of feeding time, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. Reception is wild in its essence and effectiveness.
All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your path could do anything with you, because you were drawn to them, while others were repelled. Yes, even now they can.
You cannot fix this - imprinting is one-time and for life. It is difficult to understand, the instinct took shape when you were still very far from being able to formulate. From that moment, no words or details have been preserved. Only facial features remained in the depths of memory. Those traits that you consider your family.
3 commentsSystem and Observer
Let us define a system as an object whose existence is not in doubt.
An observer of a system is an object that is not a part of the system it observes, that is, it determines its existence, including through factors independent of the system.
From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.
An internal observer is a potentially achievable object for the system in relation to which the inversion of the observation and control channels is possible.
An external observer is even an object potentially unattainable for the system, located beyond the event horizon of the system (spatial and temporal).
Hypothesis #1. All-seeing eye
Let's assume that our universe is a system and it has an external observer. Then observational measurements can take place, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".
The capture of "gravitational radiation" by an object increases its randomness and is perceived by us as a passage of time. An object that is opaque to "gravitational radiation", the capture cross section of which is larger than the geometric size, inside the universe looks like a black hole.
Hypothesis #2. Internal Observer
It is possible that our universe is watching itself. For example, using pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, which reaches its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of a sufficiently large capture cross section on the trajectories of objects capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:
Time flow
External observation of an object approaching the event horizon of a black hole, if the “outside observer” is the determining factor of time in the universe, will slow down exactly twice - the shadow from the black hole will block exactly half of the possible trajectories of “gravitational radiation”. If the determining factor is the "internal observer", then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.
Also, the possibility of combining these hypotheses in one proportion or another is not excluded.
Full text of Art. 437 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under Article 437 of the Civil Code of the Russian Federation.
Commentary on Article 437 of the Civil Code of the Russian Federation
1. The commented article distinguishes between an invitation to make offers that does not entail contractual legal consequences, on the one hand, and a public offer as a kind of offer, on the other hand.
As a general rule, advertisements and other offers that are addressed to an indefinite circle of persons are not an offer. This rule follows from the legal definition of an offer. Since a proposal to conclude an agreement sent to an indefinite circle of persons is not recognized as an offer, it does not bind the person on whose behalf the proposal is posted or sent.
2. From the general rule that an offer must have a specific addressee, an exception is possible. It is provided for by paragraph 2 of the commented article, according to which an offer is also a proposal that contains all the essential conditions of the future contract and from which the will of the person is seen to conclude an agreement on the proposed terms with everyone who responds. Due to the absence of a specific addressee, this type of offer is called public.
A public offer, in contrast to an invitation to make an offer, entails consequences of a contractual legal nature: it binds the offeror with an offer made by him, and provided that there is a time limit for acceptance in such an offer, it is, as a general rule, irrevocable.
3. Court practice:
- Resolution of the Ninth Arbitration Court of Appeal dated 05.12.2013 N 09AP-40079/2013-AK in case N A40-111551/13;
- Resolution of the Federal Antimonopoly Service of the East Siberian District dated January 29, 2013 in case N A33-6653 / 2012
- Resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 20, 2013 in case No. А63-8123/2012.
Consultations and comments of lawyers on Article 437 of the Civil Code of the Russian Federation
If you still have questions about Article 437 of the Civil Code of the Russian Federation and you want to be sure that the information provided is up to date, you can consult the lawyers of our website.
Comments on Article 437 of the Civil Code of the Russian Federation
1. Clause 1 of the commented article contains a new concept - "an offer to make offers". This is not an offer. This proposal, as can be understood from the meaning of this norm, does not give rise to any legal consequences: the person who proposed making offers is not obliged to respond to an offer received from another person, is not obliged to accept it.
Unfortunately, from the norm of paragraph 1 it is difficult to conclude why exactly the proposal to make offers is not an offer - either because this proposal is addressed to an indefinite circle of persons, or because it does not contain all the essential terms of the contract. The assumption that an offer to make an offer is not an offer because it does not contain all the essential terms of the contract is refuted by the clause ("unless otherwise expressly stated in the offer") in clause 1. It follows from this clause that the offer does not containing all the essential terms of the contract, is still an offer if it says: "This is an offer." But such a conclusion is absurd, which means that the premise is wrong.
At the same time, the assumption that a proposal to make an offer is not an offer because it is addressed to an indefinite circle of persons is refuted by the norm of paragraph 2 of the commented article, which indicates the existence of a public offer. The interpretation again leads to an absurd conclusion.
Based on this, we believe that paragraph 1 is formulated inaccurately, that we are talking about proposals that do not contain all the essential terms of the contract, and the reservation in this paragraph is erroneous.
2. Clause 2 defines a public offer. It differs from the offer specified in Art. 435 of the Civil Code of the Russian Federation, only in that it is addressed to an indefinite circle of persons. The expression "anyone who responds", in our opinion, is equivalent to the concept of "an indefinite circle of persons".
As for the content of a public offer, it does not differ from the content of a regular offer: available in paragraph 1 of Art. 435 explanations ("definiteness" of the proposal, which "expresses the intention" of the offeror "to consider himself to have concluded the contract") are similar to the explanations given in paragraph 2 of Art. 437 (from the proposal "the will of the person making the proposal is seen to conclude a contract on the conditions specified in the proposal"); this is a tautology.
However, a public offer differs from a regular one in that a public offer can be accepted by big number persons and then the contracts should be considered concluded with all these persons. If the offeror is able to fulfill all these contracts, then no legal problems arise. If the offeror is unable to fulfill all of them, then he is liable for failure to fulfill obligations (Chapter 25 of the Civil Code of the Russian Federation).
To avoid such consequences, the person making a public offer often accompanies it with certain conditions ("contracts will be concluded with the first ten responding persons", etc.). The same conditions are included in offers sent to several specific recipients. Their inclusion in the offer is permissible (Article 157 of the Civil Code of the Russian Federation).
If a public offer is made by a commercial organization obliged to conclude public contracts, then the norms of Art. 426 of the Civil Code of the Russian Federation.
When concluding supply contracts, the norms of paragraphs 1 and 2 of Art. 437 apply in conjunction with the provisions of art. 507 of the Civil Code of the Russian Federation.
