Offer and Acceptance

Also known as: Formation of Contract, Proposal and Acceptance, İcap ve Kabul, TCO Articles 1-11

In short

The two mutually consistent declarations of intent required to form a contract: one party's proposal to contract (offer) and the other party's corresponding assent (acceptance).

A contract is formed by mutual and consistent declarations of intent (TCO Article 1). The first is the offer, the second the acceptance. Declarations may be express or implied.

Offer

An offer is a binding proposal containing the essential terms of the contract, which forms the contract once accepted. The offeror is bound for a certain time:

Offer with a deadline: Binding until the deadline (TCO Article 3).
Offer without a deadline to a present person: If not accepted immediately, the offeror is released. Offers made during direct communication by telephone, computer or similar means are deemed made between present persons (TCO Article 4).
Offer without a deadline to an absent person: The offeror is bound until the time a reply sent duly and in time could be expected to arrive (TCO Article 5).

Price Lists, Tariffs and Displays

Displaying goods with prices and sending tariffs, price lists and similar material are deemed offers unless the contrary is clearly and readily apparent (TCO Article 8(2)). An offer does not bind the offeror if it expressly reserves the right not to be bound, or if the nature of the transaction or the circumstances show no intention to be bound (TCO Article 8(1)). Businesses sending price lists and catalogues that do not wish to be bound should therefore include clear reservations such as “subject to availability” or “non-binding”.

Acceptance

Acceptance must correspond to the offer. A reply changing essential points is not an acceptance but a new offer. If the parties agree on the essential points but leave secondary points open, the contract is formed; if they cannot agree on secondary points, the court decides according to the nature of the transaction (TCO Article 2).

Revocation

An offer or acceptance is deemed not made if its revocation reaches the other party before or at the same time as the offer or acceptance (TCO Article 10).

In Practice

In commercial correspondence, which of “offer”, “intention” or “preliminary understanding” is a binding offer is often disputed. If binding effect is not intended, this should be stated expressly; see Letter of Intent. Between merchants, letters confirming contracts concluded orally or electronically must be objected to within eight days; see Objection to Invoice.

Frequently Asked Questions

Is a product listing with a price on a website an offer?

Under TCO Article 8(2), displaying goods with prices and sending tariffs, price lists and similar material are deemed offers unless the contrary is clearly and readily apparent. This differs from the rule under the former Code of Obligations No. 818. E-commerce and consumer transactions are also subject to pre-contractual information and consumer rules.

Does silence amount to acceptance?

As a rule, no. But where the offeror is not bound by law, the nature of the transaction or the circumstances to expect express acceptance, the contract is deemed concluded if the offer is not rejected within a reasonable time (TCO Article 6). Special rules also apply to failure to object to confirmation letters between merchants.

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