Can contracts be formed without offer and acceptance?

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The two Brazilian civil codes dealt with the phenomenon of contract formation presupposing the identification of an offer and an acceptance. In the country's undergraduate courses, it is common for students to examine only this training model, worrying exclusively about its nuances, such as the possibility of withdrawing acceptance. However, in legal practice, several situations are noticeable that defy this logic, in which it is difficult or impossible to discern the two stages. Therefore, in response to the honorable invitation made by the coordinators of the Contemporary Civil Law Research Network, this column is dedicated to examining the possibility of forming contracts outside the traditional model.


Initially, it is worth establishing that the model of offer and acceptance does not originate in Roman Law. At that time, there was not even a broad notion of a contract as an agreement of wills between two or more people, recognized and supported by law, intended to create rights and obligations. For the Romans, not every agreement of wills was a contract. The notion was restricted to enforceable pacts. The issue can be summarized in the statement that, while current Law gives us a concept of contract, classical Roman Law offers us a list of contracts [1] . Only strict figures, which were usually surrounded by solemnities in their formation, were understood as contracts. For Moreira Alves, Roman jurists understood the contract “as an organic unit and not, like modern ones, as a whole composed of two halves: the offer and the acceptance. In Roman Law, there was not even a technical designation for these two institutes” [2] .

The broad notion of a binding contract B2B Lead emerged a few centuries later. As Roppo explains, Germanic and canonical influences in the post-classical era led to a departure from the rigors of Roman contractual formalism, in the name of respect for the word given. Natural law thinking was responsible for the subsequent sedimentation of this idea, with the exaltation of the juridical power of the will [3] . The emergence of general contract theory is linked to the evolution of systems for the general admission of obligatory contracts, which occurred between the 17th and 18th centuries. The offer and acceptance model was developed during this period, due to the significant expansion of commerce and the increase in the number of trips. It is noticeable that the conception would be unnecessary for the analysis of the conclusion of contracts between gifts, but its historical affirmation occurred because contracts between people who were distant became more common, with a time lapse between the offer and acceptance [4] .



The model of offer and acceptance began to be challenged in the face of the needs that emerged in modern life. Factors such as increasing urbanization and new technologies, especially in transport and communications, have substantially modified the scenario in which the traditional model was designed, exposing its limits. This perception is common to jurists from the two great Western legal traditions [5] . In Germany, for example, the theory of factual contractual relations (faktische Vertragsverhältnisse) emerged, founded by Günter Haupt and deepened by several authors. Alessandro Hirata, in an in-depth study on the subject, shows that the traditional rigid structure of contract formation through the meeting of two declarations of will “has for some time now not corresponded to everyday situations experienced”, and, consequently, “several authors have sought to eliminate this watertight concept, incorporating the factual element as the possibility of generating contractual legal effects” [6] . In this context, Karl Larenz formulated the theory of establishing obligatory relationships through typical social behavior. Analyzing the situation of a subject who gets on a tram, he states that there is no agreement of will in that situation, as there was no prior consensus. The subject's behavior would not be seen as a declaration of will, amounting to acceptance. The mandatory effect would be generated independently of the agent's will. The behavior is understood “according to the use of traffic, as justifying an obligation. It is the typical social 'response' or 'reaction' to the offer and therefore has the socially typical meaning of a source of obligation” [7] . The same reasoning is currently applicable to the Rio de Janeiro VLT, which, despite not having turnstiles, has social recognition that whoever enters the vehicle must pay the established price.