Consent in Syrian Law
Offer, Acceptance, and How a Contract Is Formed
Consent is the cornerstone of contract theory; it is the element from which all contractual relationships arise. It is not enough for one person to wish to sell property or provide a service, nor is it enough for another to wish to purchase or contract; rather, two wills must meet to create a specific legal effect. From this meeting arises the contractual relationship to which the law attaches rights and obligations.
For this reason, the Syrian Civil Code accords consent special importance. It regulates the rules of offer and acceptance and explains when a contract is formed and the conditions that must be met for an expression of will to be valid and produce its legal effects.
This article examines the concept of consent, the mechanism for forming a contract, forms of expressing will, cases of withdrawal of an offer, and the principal practical applications in light of the provisions of the Syrian Civil Code.
First: What Is Meant by Consent?
Consent is the concurrence of two or more wills to bring about a legal effect. It is normally represented by an offer made by one contracting party and a corresponding acceptance made by the other party.
Consent need not be in writing in every case, as the general rule under Syrian law is that contracts are consensual unless the law requires a particular form for certain contracts.
Second: What Is an Offer?
An offer is a definite proposal addressed by one person to another, containing the essential elements of the contract, such that its acceptance forms the contract immediately without the need for further negotiations.
For a proposal to constitute a legal offer, it must be:
clear and specific;
definitive in expressing intent;
inclusive of the essential elements of the contract; and
made by a person with legal capacity to dispose.
An invitation to negotiate or a general advertisement for goods or services does not in every case constitute an offer; depending on the circumstances of each case, it may merely be an invitation to contract.
Third: What Is Acceptance?
Acceptance is the expression by the other party of agreement to the offer without altering its essential elements.
If the offeree adds a new condition or modifies one of the essential elements, that response is not acceptance; it is considered a new offer requiring acceptance by the first party.
Accordingly, acceptance must correspond to the offer for the contract to be formed.
Fourth: When Is a Contract Formed?
A contract is formed as soon as the offer and acceptance correspond on the essential elements of the contract.
Performance of the obligations or execution of a separate document is not required for the contract to be formed, unless the law requires a particular form for that type of contract.
Determining the moment a contract is formed is important in many matters, including:
determining when obligations begin;
the transfer of certain risks;
calculating legal periods; and
determining the applicable law in certain international relationships.
Fifth: Expression of Will.
An expression of will need not always be in writing; it may be made by various means, including:
signing a written contract;
paper correspondence;
email;
electronic messages;
an electronic signature, where it meets the regulatory requirements; and
conduct that leaves no doubt as to its indication of consent.
The evidentiary meaning of each means remains subject to the law, the circumstances of the case, and the available evidence.
Sixth: May an Offer Be Withdrawn?
An offer may be withdrawn before it is coupled with acceptance, unless the offer is binding on its maker by law or agreement.
However, once valid acceptance arrives in due time, the contract is formed, and the offeror may not withdraw from the obligation unilaterally except in cases permitted by law.
Seventh: Silence... Does It Constitute Acceptance?
The general rule is that silence does not constitute acceptance.
However, legal scholarship and case law have settled on exceptional cases in which silence may convey acceptance, where this can be inferred from the nature of the dealing, custom, the parties' prior relationship, or special circumstances that make silence indicative of consent.
Therefore, silence cannot be regarded as acceptance absolutely; each case is assessed according to its circumstances.
Eighth: Practical Examples.
First Example:
A supplier sends a specific offer to supply equipment at a stated price and within a specified delivery period, and the customer agrees to all terms without amendment.
In this case, the contract is formed once the acceptance arrives, in accordance with the legal rules.
Second Example:
A person receives an offer to sell real property and replies with agreement while requesting a price reduction.
This reply is not acceptance; it is considered a new offer requiring the first party's approval.
Third Example:
Two companies engage in lengthy negotiations but do not agree on the final price.
Despite the advanced negotiations, no contract is formed so long as agreement on an essential element remains incomplete.
Common Mistakes
Among the most frequent mistakes that lead to disputes are:
believing that the start of negotiations means a contract exists;
confusing an advertising proposal with a binding offer;
modifying the terms of an offer while believing that the contract has been formed;
failing to specify the period for which the offer remains valid; and
relying on unclear or incomplete correspondence.
Frequently Asked Questions
Must a Contract Be Signed to Be Formed?
Not always. The general rule is that a contract is formed by corresponding offer and acceptance, unless the law requires a particular form.
Can an Email Be Used to Conclude a Contract?
It may be, if the elements of offer and acceptance are present and it is possible to prove the issuance of the expression of will and attribute it to its makers.
Can Consent Be Proven by Electronic Means?
Yes, where the law permits it and appropriate means of proof are available.
Consent is the true foundation of every contract, as contractual obligations arise only where the two wills meet clearly and validly. This is why it is important to distinguish between offer and acceptance, understand the moment when a contract is formed, and know the means recognized for expressing will.
Understanding these rules benefits not only legal practitioners but also helps individuals and companies avoid many disputes caused by misunderstanding the negotiation stage or by an unclear expression of will.
In the next article in this series, we will address Capacity to Contract in Syrian Law: Who May Conclude a Contract, and What Is the Effect of Lack of Capacity on Its Validity?
References:
The Syrian Civil Code, Legislative Decree No. (84) of 1949, general provisions relating to contract formation.
Abd al-Razzaq al-Sanhuri, Al-Wasit in Explanation of the Civil Code, contract theory.
The Syrian Legal Encyclopedia, chapter on contract formation.
Syrian Court of Cassation precedents concerning offer, acceptance, and contract formation.
I suggest that we continue the series without repeating any topic previously published, so that each new article is an independent addition to the body of knowledge, while including internal links to earlier articles to strengthen the coherence of the content and improve its visibility in search engines.