Binding bids in the sale of businesses
What are the binding bids in the process of selling companies?
In a process selling a business, it is desirable to have as many stakeholders as possible. When this is achieved, You can perform an auction process, which normally has restricted character. This is where the adviser for the sale generates the greatest value: if you can manage to bring the “negotiating table” several candidates, the results will be maximized for the seller and may request interested parties to formulate ofertas vinculantes.
Recapitulating the sales process, after sending the "blind profile"Potential candidates, interested parties should sign a confidentiality agreement and subsequently receive "infomemo"Or summary of key company data.
When the "due diligence"It is nearing completion, The seller asks stakeholders who cast their binding offer. Namely, the seller, makes a "Invitation to tender" so that you can he may choose whether to accept any of them.
The "invitatio ad offerendum" or request for binding offers
It is important to distinguish the concept of firm offer of sale in front of request for binding offers. A firm offer of sale contains all the necessary elements for the closing of the transaction and has the intention of the offeror to be bound in case it is accepted. If the RFP is to mistake with a firm offer, it may cause many legal disputes.
Sending information is considered as a mere invitation to make offers. (We must not forget that we are outside the scope of consumer contracts, so it does not apply the TRLGDCYU).
So for a "Invitation to offer" it is interpreted and not as a firm offer is essential:
1.- Expressly stated that the indication that it is an invitation to submit binding offers for the buyer.
2.- That does not oblige the seller, they may even reject all the same.
3.- That no liability for the seller will be generated in case of non-acceptance.
The greater the clarity and detail "Invitation to offer", the less likely that legal disputes are generated. Will unilateral emissions as a source of obligations is a topic much discussed by the legal doctrine. So it is preferable to adopt an "Anglo-Saxon" style preventing loose ends.
On “The invitation to offer“, the seller must raise the requirements for binding offers: The elements that must be included with the greatest possible specificity and the conditions under which if accepted by the seller, the perfection of the contract occurs.
The binding offer
The binding offer must contain the following elements:
1.- Full realization of all the essential points of the contract, to Seller's acceptance is sufficient to improve the operation.
2.- Buyer expressly indicated their consent to be bound If the acceptance occurs by the seller.
3.- Must go to seller for acceptance bonding occurs ex Article 1262 Civil Code.
In practice, More often than not the operation by accepting a seller finally close binding offer. The buyer usually condition their offer to negotiations on various "fringe" of the operation. However, produce binding offer some "anchor" on the price and provide a reference that will allow to reach an agreement, once you solved the details of the transaction.
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