Origination of contracts without an understanding between the parties?

Czech Republic: The new Civil Code makes it possible for a contract to come into existence even if the parties have not reached full consensus on its contents.

Pursuant to the statutory arrangement in place before 31 December 2013, parties had to reach an understanding with respect to the entire contents of their contract before such contract would come into existence. The new Civil Code departs from this principle in certain ways.

Previously, if one party (the “offeror”) presented another party (the “acceptor”) with an offer to contract and the acceptor accepted this offer only with certain reservations or amendments, then this “acceptance” in fact constituted a new offer to contract, i.e., the parties swapped their respective roles of offeror and acceptor. As a consequence, the contract would only come into existence if the “original offeror” expressly agreed to the reservations or to the changes proposed by the other party.

Under the new law, the contract will be deemed made even if the acceptor accepts the offer to contract with certain additions or deviations, as long as they do not substantially change the terms of the original offer.
However, the original offeror may prevent the contract from coming into existence by promptly rejecting the acceptance of the modified offer.

With a view to this new situation, it is advisable that contracting parties always review carefully whether an offer may have been accepted “with changes”. If it were found that the acceptance contains inacceptable deviations from the original terms, one would have to promptly reject the acceptance. We note that the law also provides for the option to expressly rule out this form of “acceptance with additions or changes” beforehand (e.g. in the offer to contract itself).
Sec. 1726 and Sec. 1751 (2) of the new Civil Code stipulate other cases in which a contract comes into existence even in the absence of the parties’ full consensus on its contents.

Kryštof Kobeda, Lawyer

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