In practice, it is common to conclude contracts as a result of accepting an offer made by a contractor. In such cases, the rule is that the contract comes into effect upon receipt by the offeror of a statement from the offeree accepting the offer.
However, there are exceptions to this rule, resulting, inter alia, from Article 69 of the Civil Code, which regulates cases of conclusion of a contract by submitting an offer and the other party proceeding to perform the contract.
Pursuant to Article 69 of the Civil Code, if, according to the custom established in the given circumstances or according to the content of the offer, it is not required for the offeror to receive a statement of acceptance from the other party, in particular if the offeror demands immediate performance of the contract, the contract is concluded when the other party commences its performance at the appropriate time; otherwise, the offer ceases to be binding.
This provision provides for two cases in which the contract is concluded even though the declaration of intent to accept the offer has not reached the offeror in accordance with Article 61 of the Civil Code.
The first case, regulated in Article 69 of the Civil Code, is that the arrival of the declaration of acceptance of the offer to the offeror is not required according to the custom established in the given circumstances (understood as the practice developed when concluding specific contracts). An example of this would be mail order contracts.
The second case concerns a situation where the offeror is not required to receive a statement of acceptance of the offer according to the content of the offer. This means that the offeror itself, in the content of the offer, releases the other party from the obligation to send it a statement of acceptance of the offer, in particular when the offeror demands immediate performance of the contract. The above rule also applies to previously concluded framework agreements in which the parties have agreed that one of the parties shall submit an offer (order) that does not require a statement of acceptance.
In the above cases, for the contract to take effect, the other party must commence performance of the contract, whereby the performance of only some of the obligations, or even one obligation covered by the offer, is considered sufficient.
The performance of all obligations is not required for the effective conclusion of the contract, as the commencement of performance of the contract simultaneously expresses the will to conclude the contract and thus constitutes a declaration of will to accept the offer. The contract will also be concluded if, in response to the offer, the contractor performs the contract in its entirety in accordance with its content as specified in the offer.
The condition for the conclusion of a contract is to commence its performance ‘at the appropriate time’. The deadline for the performance of the contract may be specified by the offeror in the offer, or the offer may specify the period within which the counterparty should commence the performance of the contract. In the absence of a specified date, the performance of the contract should commence at a time when, with due diligence, it is possible to commence the performance of the contract.
If the other party does not commence performance of the contract, or if it does commence performance of the contract but does so after the expiry of the appropriate deadline or in a manner inconsistent with the content of the offer, the contract is not concluded and the offer ceases to be binding.
Performance of the contract as a means of declaring one’s intention to accept the offer is also possible in cases other than those regulated in Article 69 of the Civil Code. However, in situations not covered by Article 69 of the Civil Code, it is not sufficient for the conclusion of the contract to commence its performance, but to perform it.
In view of the above provision, it is necessary to carefully analyse offers, contract templates or unilaterally signed contracts received from bidders/contractors and raise objections to their terms and conditions before performing even a single contractual obligation.