The term pollicitation has its roots in Roman law, where it was used to describe a promise of a gift made by a candidate for municipal magistracy. In , the term "pollicitation", or "supply", is defined as the act of proposing the contract conclusion.
A contract offer may be defined as a proposal to enter into a contract. Nevertheless, the law differentiates between these two expressions, as a proposal to contract is not subject to the same legal regime.A legal regime refers to a set of rules on a particular concept. An offer is only classified as a solicitation if a clear and simple affirmative response (acceptance) is sufficient to establish a contract between the two parties. In other cases, the offer may be reclassifiedThe term "disqualify" is used in law, and in this article, to designate a change in the legal qualification of a fact, in favor of a more flexible legal concept. as an invitation to negotiateIn this scenario, it would mean that there is only an invitation to negotiate. The person extending this invitation will not have been firm and precise enough regarding the content of the contract they propose. The recipient of this offer can then, in fact, make a new proposal, which we will call a counter-offer, and the person who initiated the negotiations can either accept this counter-offer or make a new one in return. or an invitation to tender.In this scenario, the offer would not have been firm, aiming to put the recipients of the call in competition with each other. Even if very detailed in a set of specifications, calls for tenders do not commit to a precise price.
In a strictly legal sense, as understood by French legal doctrine,The notion of "pollicitation" does not exist, strictly speaking, in other European doctrines, particularly German (the BGB is more recent than the French Civil Code and more exhaustive) or in Common Law countries (where the rule of precedent provides a legal framework for the concept of a contractual offer, without relying as extensively on legal scholars). the definition is narrower and refers to a firm proposal to conclude a contract under determined conditions, such that acceptance of the offer is sufficient to form the contract. However, some authors downplay the distinction between offer and pollicitation, considering these two terms synonymous, while acknowledging that pollicitation, in its strict sense, carries more legal weight than an offer.
This definition has been adopted in recent legal instruments, including Article 14, paragraph 1 of the Vienna Convention of the United Nations of April 11, 1980,United Nations Convention of April 11, 1980, List of States Parties to this Convention [archive] the , the principles of European contract law, and the (which was ultimately not implemented).Contrary to what the Catala Report proposed, there is currently no article 1105-1 in the Civil Code [archive]. A similar definition is also found in the Common law countries or the Civil Code of Quebec.
Nevertheless, pollicitation is no longer the sole means of concluding a contract. Legal procedures have undergone significant evolution, particularly with the advent of pre-contracts,Preliminary contracts are sometimes called "preparatory contracts," since these preliminary contracts are made solely for the purpose of concluding a future contract. adhesion contracts,This refers to a common category of contracts where, in reality, no negotiation is possible: either you agree to the terms of the contract, or you reject it entirely. and the practice of punctation.In which the parties will consensually form a contract "point by point," without a single offer. Furthermore, pollicitation is confronted with the issue of , namely whether a pollicitant should be prohibited from revoking their offer. The German Civil Code accepts the principle of the impossibility of retracting an offer, whereas the French Civil Code rejects this principle in favor of contractual freedom. This means that an individual free to make an offer is also free to withdraw it. Similarly, if a condition necessary for the pollicitation to exist disappears, for example, if the pollicitant loses their legal capacity or dies, the pollicitation becomes null and void.
The concept of pollicitation remains of practical importance. In the absence of a genuine offer, no contract exists, and thus, no contractual obligation arises between the parties. The argument of the non-existence of an offer before a judge can challenge a situation that may have appeared to the other party as a contract.
Concurrently, judges are responsible for upholding legal security to prevent unwarranted or abusive retractions by politicians. While such disputes were uncommon at the inception of the French Civil Code, judges have progressively been tasked with defining the concept of pollicitation and its associated regulations since the 1950s.
In French positive law, pollicitation is defined as an externalized proposal to contract, whereby the intention to be bound in case of acceptance for the essential elements of the future contract is demonstrated. A pollicitation may be withdrawn at any time before acceptance by the recipient; otherwise, it constitutes a wrongful or abusive retraction. Finally, if the pollicitation becomes void due to the death or of the pollicitant, it ceases to exist.
Nature of the offer An offer to contract represents a definitive proposal to conclude a specified contract, made under the conditions outlined in the proposal.
In accordance with the tenets of the Catala Draft Project, a unilateral act is defined as a contractually binding proposal, formulated at a specified or unspecified level of detail, which, upon acceptance, expresses the intention to enter into a contractual agreement.
The offer must be presented in a clear manner.
Required characteristics For an offer to be legally qualified as a solicitation, it must exhibit each of the following characteristics. These traits, which are sometimes called "constitutive elements", are indispensable to the existence of a solicitation. They are distinguished from other elements that, while not essential to the offer, help clarify it.
Precise offer Under Article 14-1 of the United Nations Convention on Contracts for the International Sale of Goods:
French common contract law espouses a comparable perspective, albeit with the caveat that the Vienna Convention is exclusively applicable to specific contractual arrangements.Common contract law, which is the legal regime for all contracts, whether named or unnamed, is opposed to the law of special contracts, which are named contracts that have a special legal regime. See in particular, Droit des contrats spéciaux en France.
Following Pothier's formula, the fundamental components of a contract are those that "give a contract its specific nature and without which it cannot be characterized." (essential elements are those "without which it would be impossible to know what kind of agreement has been concluded") (these are the "specific core elements that reflect the legal and economic operation that the parties intend to carry out") The offer must encompass the essential elements of the proposed contract, that is, elements that facilitate its execution.
Nevertheless, ascertaining the indispensable components that must be included in the proposal and those that may be omitted due to their ancillary nature is a challenging endeavor that hinges on the specifics of the contract in question. Scholars have delineated a distinction between a "named" contract, which is subject to a defined legal framework, and an "unnamed" contract, which lacks such a framework.
Named contracts If a contract is identified as such, and thus subject to the provisions of a specific legal text, it is that text which will serve to define the essential elements of the contract in question.
To illustrate, a sale, which is a defined contractual agreement, is considered complete and enforceable as soon as the parties involved have reached an agreement on the item and the price. It is not a prerequisite that the item be delivered or the price paid; rather, it is sufficient that there be an agreement on these two essential points, which then form the contract. Consequently, an offer that is legally binding in a sale proposes a specific price for a specific item.;
In contrast, a lease contract, which is also a named contract, requires the offer to mention the leased property and the rent amount.; , and particularly: In the case of , additional elements such as the start date, , and duration of the lease may be required.
Unnamed contracts In this case, the level of precision is "quite vague." Absent a specific legal , nothing initially determines the essential elements of the contract. In such cases, the judge will have to determine the elements on a case-by-case basis, sometimes following the "guidance" of doctrine, which can also be quite vague.
To illustrate, it has been determined that an offer to an Actor must include, among other stipulations, the proposed remuneration and the commencement date of filming.
In a series of rulings related to the issue of price indeterminacy, the French Court of Cassation also determined that a reference to a rateThe rate is a price which is not precisely determined (e.g. a precisely determined price: €845.30), but which is determinable for the future (e.g. 5% of the revenue from a production, when the production has not yet been carried out). could suffice to provide sufficient precision in an offer, provided that it was not abused or intended to yield illegitimate profit.
Role of the parties In some instances, the judge may be tasked with classifying certain contractual obligations as principal, while others are regarded as accessory. The former are indispensable for forming the contract, whereas the latter serves only to determine how the principal obligations will be executed. Consequently, accessory obligations are not regarded as essential elements of the contract.
For instance, the date and place of payment in a sale contract may be considered a secondary element, although the parties may agree that it is to be regarded as an essential component. In such cases, the contract must explicitly indicate that the date and place of payment are to be regarded as essential.
In the absence of an explicit stipulation, the terms of execution may be defined subsequent to the formation of the contract, in accordance with legal provisionsThe term "legal" can be understood in the broadest sense of the term: statute, regulation and custom can all be invoked. or customary practices.Usage is understood as mere habit, while custom is a habit whose date of origin cannot be specified. However, should one of the parties consider these elements to be indispensable, they may be excluded from the contract.
Place left to the nature of the contract In some contracts, it is not customary to fix the price beforehand, at the moment of forming the contract.; ; to determine the remuneration of a painter, see ; This is notably the case with a business contract or a power of attorney. Similarly, the proposal from a jeweler who wanted to modify the ceiling of his insurance contract for the "lowest possible premium" was considered sufficiently precise and therefore merits the designation of pollicitation. Also see:
Contracts by electronic means Article 1369-4 of the French Civil Code stipulates that an electronic offer must contain certain content inherent to electronic transactions. To be considered an electronic offer, it must therefore include: