We have already addressed the issue of the contract conclusion process in the internet environment, specifically in the circular from October 2008. Recently, however, views of certain consumer organisations, supported by arguments from part of legal theory, have appeared more intensively in practice, suggesting that a trader who places an offer to sell certain goods or an offer to provide a certain service on his website (e.g. within an online shop) thereby makes a so-called public proposal for the conclusion of a contract. The consequence of accepting such an interpretation would be that a contract regarding the sale of such goods or regarding the provision of such service would be concluded by the mere fact that any third party responds to this offer in a qualified manner. Although we do not agree with these views of consumer organisations, we considered it important to draw traders’ attention to them. For a closer acquaintance with the consequences of both approaches for practice, we therefore devote space to this issue also in the August legal circular.

The general regulation of contract conclusion is contained in the Civil Code (Act No. 40/1964 Coll., as amended). For the proper conclusion of a contract, the fulfilment of the following conditions is fundamentally presumed (cumulatively): (a) making a proposal for the conclusion of a contract that is addressed to one or more specific persons — Section 43a(1) of the Civil Code, (b) acceptance of this proposal by the other party — Section 43c(1) of the Civil Code, (c) delivery of this acceptance back to the offeror — Section 43c(2), Section 44(1) and Section 45(1) of the Civil Code. If this general regulation is followed in practice when operating an online shop, the contract conclusion process looks as follows in simplified form. The customer makes a selection of goods from the online shop’s offer (e.g. places goods in the “basket”) and sends it to the trader, thus the customer makes a proposal for the conclusion of a contract. The trader accepts this proposal of the customer most commonly by sending a message to the customer by electronic mail. By delivery of such message (acceptance) to the customer, the contract is concluded. Such a procedure in concluding a contract causes no problems in practice from either a legal or factual perspective, and in our view it is not beneficial to deviate from it.

Acceptance of the aforementioned view of consumer organisations would mean that the process of concluding a contract in the internet environment is different. By placing an offer of goods or services in an online shop, the trader makes a so-called public proposal for the conclusion of a contract (provided that other statutory prerequisites required for making a proposal for the conclusion of a contract are fulfilled). By the customer accepting such public proposal for the conclusion of a contract (e.g. “places goods in the basket” and clicks), the contract is concluded. From the conclusion of the contract it follows that the trader is obliged to supply the goods or services regardless of who the other contracting party is (e.g. a problematic customer) or regardless of the fact that he no longer actually has the said goods available, etc. As already mentioned, we consider the above-stated legal opinion of consumer organisations to be incorrect. From a practical perspective, our argumentation is based in particular on the following.

The vast majority of traders currently have a presentation of their goods or offered services on the internet, and for practice it is entirely impractical for a web presentation to be considered, even in certain situations, a public proposal for the conclusion of a contract. Should we accept the view of consumer organisations that the presentation of products and services in the internet environment is a public proposal for the conclusion of a contract, the trader would unintentionally enter into a contractual relationship with every person who responds to his offer in a qualified manner. If we were then to accept the argument that only certain offers to sell goods or provide services in the internet environment constitute a public proposal for the conclusion of a contract and others do not, objective criteria would have to be established legislatively or by interpretation to distinguish these two situations (see the above-mentioned point regarding information that must form part of a contract proposal). The correct recognition and assessment of these criteria would then determine whether the contract would actually be concluded or not. Such a situation would understandably again introduce an enormous degree of legal uncertainty into legal relations in the internet environment.

This text was translated from Czech to English using an AI translator.