Contractual relationships are dynamic. Parties aim to establish legally safe interrelations, by having leeway in the meantime. The Albanian Civil Code (CC) upholds the contractual freedom in several articles. The freedom of content is one of them. It gives the contractors free will to draft the terms and conditions, by always complying with the binding legal requirements. More on this topic you can read in a previous article.
The Contract, with all its clauses, becomes legally binding for the parties at the moment when their internal will becomes apparent – in sum, when the parties have reached a common sense for all the terms and conditions. Exemption from this rule, make those contracts for which the law requires either a certain form, or the item on which the contract is agreed- to be delivered, for the will to be considered as compiled.
The moment when a contract is concluded has legal importance, because the contractors should wait right aty for the legal consequences. Anyhow, in the course of their will to be materialized in a contract, they pass in two very important stages: the offer and the acceptance.
The offer is an unilateral proposal from the interested party that has an interest in entering into a contractual relationship. According to the Civil Code a proposal is valid as an offer if it is complete and contains all the essential elements required for a contract, which are:
- The expressed consent of the party – willing to undertake the obligation;
- The legal cause whereon such obligation is built on, and
- the scope framing the content of the contract
Depending on the nature of the contractual relationship, the offeror can stipulate a time limit or not. In any case, he is bound with his/ her offer. If the time period within which the offeror expects a response is set, this is an example of a time-limited offer. Anyhow, in any case, it should be considered the time it takes for the other party to look at the offer and give a response back.
In a situation when both of the parties are in a continuous communication, whether physically or by electronic means, and the receiver does not accept immediately the offer which has not a deadline, the offer should be considered as rejected. Anyhow, even in this case, parties have the opportunity to set a time limit within which the offeror can wait for a response from the receiver.
For example: A trader proposes to another one, the supply of goods for a year. Both of them are at the office of the first trader. The trader to whom the offer is made has a proposal with the same object, from another person. In such a situation and in good faith, he informs the offeror of such a fact, stating that it takes ten days for him to consider both offers. Within this time period, he shall deliver a final decision to the offeror. Thus, despite that both of the parties are physically present, and there is a common will to enter into a contract, as the receiver requires more time, the offeror is bound by his offer by the end of the ten-day deadline.
The offer is rejected in case the receiving party does not accept it, or does not return any response within this time period. If the offeror has not set a time-limit, the Civil Code provides that he/she shall be bound to his/her proposal for as long as depending on the circumstances, on a case-by-case basis, a response needs to be given.
Just like the offer, the acceptance should meet certain criteria to be valid. The person to whom the offer is addressed must reply that he agrees to all the proposed conditions. Otherwise, either it will be a rejection, or a new proposal, because there are set different conditions from the initial offer.
Respecting the time limit is just as important. The offeror might consider not to stick to his proposal if the acceptance is made beyond the set deadline. In the case that the offeror accepts a late response, after the expiration of the initial deadline, he/she should notify the other party.
The Civil Code provides two ways in which the will is expressed: explicitly or implicitly. Silence is expressed by performing conclusive actions, without notifying the affirmation in advance.For example: If the offeror proposing the supply of goods expects a response within three days, and on the second day the receiving party sends the quantity and type of goods specified in the offer, this is considered acceptance performed with certain actions. However, the recipient must notify the offeror that he/she has started the fulfillment of the obligation, in order to avoid situations of compensation for damage.
As mentioned above, the moment when the will of the offeror meets the one of the recipient is important for the parties entering into the contractual-relationship because it gives legal effect to the contract. Thus, the contract will be considered concluded when the offeror is notified of the acceptance of the offer.
However, in order to avoid situations that may cause conflict at this stage, the will may be expressed in any of the forms allowed by the Code of Civil Procedure (CPC) as evidence. Thus, it can be done through a letter, custompaper, an official act, communication by electronic means, or any form legally made.
Whatever the will of the parties or the duration of the negotiation phase to conduct a contract, it is important that they be guided by law and good faith.