When an Order Becomes a Contract: Legal Distinctions and Practical Risks

14.4.2026 | ARROWS law firm

In business practice, it is often assumed that ordering goods or services constitutes a properly concluded and binding contract. The reality, however, is more complex. In many cases, an order is only a proposal to enter into a contract, not the contract itself. If the seller does not approve the order, no contract may be formed at all. This article explains the legal distinctions and practical risks and shows how to avoid problems.

The photograph shows an attorney consulting on the legal nature of an order.

The difference between an order and a contract
Terms and conditions and their decisive role
When terms and conditions apply to you—and when they do not
Related questions on terms and conditions and their validity
Essential elements of an order and a contract
Written form is mandatory
Typical risks and ways to protect yourself
Contract to conclude a future contract—when it differs from a standard order

Quick summary

An order is not automatically a contract: An order is generally considered an offer to conclude a contract, and the contract is formed only once the seller accepts it. Without the seller’s clear confirmation, you may not have a right to delivery.
Silence does not equal consent: If the seller does not approve the order and does not respond, (§ 1740(1) of Act No. 89/2012 Coll.) expressly provides that silence or inaction in itself does not constitute acceptance of an offer. No contract is formed.
Terms and conditions have a key impact: Terms and conditions may define the process of contract formation—for example, whether the order itself constitutes the contract or whether additional confirmation is required. However, if they are not properly published and not clearly referenced, they do not apply to the buyer.
The absence of a clear contract leads to litigation: Uncertainty as to whether a contract exists and what its content is is one of the most common causes of commercial disputes. A firm and clear purchase or commercial contract will protect you.

The difference between an order and a contract

In legal terms, an order is a specific form of an offer to conclude a contract (an offer) made by the buyer to the seller. Put simply: the buyer communicates their intention to purchase certain goods or services at a specified price and under specified conditions. However, this does not automatically mean that a contract exists. If you are unsure whether the communication between the parties already meets the requirements for concluding a contract, a legal assessment within contracts and negotiations may help.

Act No. 89/2012 Coll., the Civil Code (the “Civil Code”), sets out a clear rule: for a contract to be formed, there must be a matching and complete manifestation of the parties’ intent as to its content (§ 1725, § 1745 of the Civil Code). In practice, this means that an order is only the first step.

The seller must accept it, without reservations. If the seller rejects the order, modifies it, or responds with conditions different from the original order, this is usually considered under § 1740(2) of the Civil Code to be a rejection of the original order and the making of a new offer by the seller.

Attorneys at ARROWS advokátní kancelář see thousands of cases in practice where both parties believed a contract existed, but the legal reality was different. The buyer believed the seller was bound, while the seller believed they still had discretion as to whether to fulfil the order. This uncertainty leads to misunderstandings, missed deadlines, and subsequently court disputes. In practice, similar situations are often addressed as commercial and court disputes, especially when the parties disagree on whether and when the order was accepted.

When an order truly becomes a contract

An order becomes a contract at the moment the seller accepts it—i.e., accepts it without reservations. Under the Civil Code (§ 1745), a contract is concluded at the moment the acceptance of the offer becomes effective.

In practice, this means:

The seller sends an email or written confirmation clearly stating “I accept your order” or “I confirm receipt of your order.” The contract has just been formed.
The seller begins performance in fact—for example, packs the goods, dispatches them, or starts the work. Under § 1744 of the Civil Code, such conduct may be considered implied acceptance, i.e., acceptance expressed by actions rather than words. However, even here a number of risks arise, as we will discuss below.
The seller’s terms and conditions clearly provide that the order is accepted automatically if submitted via a web form. Even in this case, strict rules apply—the terms must be properly published and the order form must visibly refer to them.

Under the amendment to the Civil Code, effective from 1 January 2023, which primarily concerns e-commerce, an online order must clearly state that by placing the order you undertake an obligation to pay. The order button or similar function must be visibly labelled with a clear and comprehensible wording “order with obligation to pay” or another equivalent formulation (§ 1826(2) of the Civil Code). If this is not stated visibly, the consumer is not bound by the order or the contract, even if they have in fact placed the order. In addition, for online sales it is worth continuously reviewing your contractual setup and terms and conditions also due to follow-on practical impacts, as shown by the article unpaid receivables in B2B.

Terms and conditions and their decisive role

Terms and conditions are not mandatory—no law forces you to have them. However, they play a key role in whether an order is transformed into a contract or remains merely an offer.

Terms and conditions are arrangements that are not included directly in the text of the contract itself, but are set out in another document referenced by the contract, or are printed, for example, on the reverse side of the contract. In e-shops, all conditions referenced outside the main text of the order form fall under the regime of terms and conditions—whether you call them terms and conditions, a complaints procedure, a warranty policy, etc.

When terms and conditions apply to you—and when they do not

Terms and conditions apply to the contracting parties only if they are duly published and clearly referenced directly in the contract itself (or, for e-shops, in the order form), and the other party agreed to them (§ 1751 of the Civil Code). The reference must be visible, clear, and in a sufficiently large font—it must not be hidden in small print or placed where a reader would normally overlook it.

Specifically, in contracts with consumers, the seller must provide the buyer, before the contract is concluded or at the latest upon its conclusion, the information required by the Civil Code and the Consumer Protection Act (§ 1811, § 1820 of the Civil Code).

This information typically includes:

The main characteristics of the goods or services, their price, and costs.
The consumer’s right to withdraw from the contract (usually 14 days for contracts concluded at a distance or off-premises).
Information on rights arising from defective performance (complaints), their scope, conditions, and how to exercise them.
Information on dispute resolution, including out-of-court resolution.
Personal data protection information (GDPR).

If the terms and conditions are not duly published and not clearly referenced, or if the other party did not agree to them, only statutory provisions apply to the contract, not these terms and conditions. This has drastic consequences—the buyer may then be unaware of limitations that the terms and conditions might contain.

In addition, for consumer contracts, if the consumer was not properly informed about the right to withdraw from the contract, the withdrawal period is extended to one year and fourteen days (§ 1829(2) of the Civil Code).

Terms and conditions and e-commerce—the button obligation

Czech legislation has evolved in recent years, particularly as a result of EU directives. As of 1 January 2023, e-shops are bound by a new obligation: the order button or a similar function must be visibly labelled with the clear and comprehensible wording “order with an obligation to pay” or another equivalent formulation that unequivocally informs the customer that by placing the order they undertake to pay (§ 1826(2) of the Civil Code).

The reason is to protect consumers from accidentally committing to a purchase. If an e-shop fails to comply with this obligation, the consumer is not bound by the order or the contract—even if they submitted it in fact.

For merchants selling B2B (i.e., between entrepreneurs), this obligation is not as strict; however, it is still advisable to use clear wording and include a reference to the terms and conditions. Terms and conditions for entrepreneurs can be more accommodating and may include clauses that would be invalid in consumer contracts.

Essential elements of an order and a contract

For an order to be legally credible and have the potential to become a contract, it must contain the so-called essential elements of the contract. Without them, the order is vague and may not be considered a binding offer.

Under the law and established case law, the essential elements of a purchase contract according to the Czech Ministry of Justice are:

Identification of the contracting parties – who is the buyer and who is the seller. For natural persons, the first and last name (or business name) must be stated. For legal entities, the name, company ID number, registered office, and ideally a reference to the entry in the Commercial Register must be stated.
Precise identification of the subject of purchase – what is being sold. A general designation such as “goods” or “services” is not sufficient. Specific parameters must be stated: for a movable item, the model, type, quality, volume; for real estate, the plot number and cadastral area; for a service, a specific description of the activity and its scope.
Purchase price or at least the method of determining it – without the amount of the price or a method for determining it, the contract cannot be binding. The price can be determined by a fixed amount, a formula (e.g., “according to the current exchange rate list”), a reference to a price list, or an estimate. It must not be left to the will of one party without objective criteria.

The Civil Code allows (§ 1769) the purchase price not to be an absolutely essential element if the parties expressly show their intention to conclude the contract even without determining the price. In such a case, the usual price for the given type of item at the given time and place applies. However, in practice this is very risky, and it is always recommended to agree the price precisely.

Absence of essential elements—what are the consequences

If an order lacks some of the essential elements, it is generally not considered a binding offer (Section 1732 of the Czech Civil Code). The seller may therefore choose whether to accept it or not. Alternatively, if there is ambiguity regarding the price or the subject matter, this may later lead to a court dispute over what the parties actually agreed.

Who can you contact?

JUDr. Jakub Dohnal, Ph.D., LL.M.

associate, managing partner

dohnal@arws.cz

Mgr. Marek Hučík

associate, partner

hucik@arws.cz

Practical example: The buyer sends an email: “I want to buy 50 pcs of product XYZ at the price according to your company’s current price list.” If the seller does not have a publicly published price list or the price list has changed, a dispute arises as to the amount of the price. Both parties have a different legal view—and the court will have to decide which party was right.

The attorneys at ARROWS therefore recommend: always include all essential elements in the order, including the exact price, delivery date, payment method, and, where applicable, a reference to the terms and conditions. The more precise the order, the higher the chance that it will become a binding contract without complications.

Form of the order – when it must be in writing and when an oral form is sufficient

The Czech Civil Code generally promotes the principle of informality (Section 559)—contracts may be concluded orally, in writing, or even implicitly (through specific conduct). However, this does not apply without exceptions.

Written form is mandatory

For contracts relating to real estate, always (a real estate purchase agreement must be executed in writing and the parties’ signatures must be officially certified, and it often must also meet specific content requirements).
For consumer contracts concluded at a distance or outside business premises, where the consumer must be provided with a copy of the contract or confirmation of the concluded contract in text form (e.g., by email).
Where the law expressly requires it for a particular type of contract (for example, an agreement on the transfer of an ownership interest in an s.r.o.).
Where the parties have expressly agreed on written form as a condition for the validity of the contract (Section 1758 of the Czech Civil Code).

Written form is not mandatory (but is recommended)

For standard purchases of goods between businesses.
For services, unless specifically stipulated otherwise.
For contracts for work in the usual scope.

Even in cases where the law does not require written form, it is strongly recommended. If a dispute arises later, an email, SMS, or a signed document is evidence that an agreement was reached between the parties and what its content was. Without this, the court must form a view of the contract’s content from testimony and indicia, which is very complicated.

Order in electronic form

In today’s digital economy, it is common for orders to be sent by email, via the web, or through e-commerce platforms. The law and Czech case law recognize email communication as meeting the requirement of written form, provided that the sender and recipient can be identified and the content is clear. However, for particularly significant legal acts, qualified electronic signatures or other forms of authentication are required.

In addition, e-shops have a specific obligation (see above regarding the button): the order must be placed in a way that clearly informs the buyer that they are committing to payment. Without this, the consumer is not bound by the order or the contract.

When there is a risk that an order will not be a contract – typical practical issues

1. The seller rejects or modifies the order

If the seller modifies the order—for example, changes the price, delivery date, or adds conditions—its response is usually considered, under Section 1740(2) of the Czech Civil Code, to be a rejection of the original offer and the making of a new offer. In that case, it is now up to the buyer to decide whether to accept this new offer. If they do not, no contract is formed.

Example: The buyer orders 100 pcs of goods at CZK 1,000 per piece. The seller replies: “I can deliver only 80 pcs at CZK 1,200 per piece, delivery in 2 weeks.” This is not an acceptance of the original order—it is a new offer by the seller. The buyer’s decision is now awaited.

2. The order contains vague or indefinite terms

If the buyer writes, “I want to buy your product as per our previous agreement,” but that agreement is not specified precisely, the seller may not be sure what is to be delivered. Such a proposal may not be considered sufficiently definite and therefore does not operate as a valid offer (Section 1732 of the Czech Civil Code).

3. Indefinite time for acceptance

If the order does not include a deadline for acceptance, the seller must accept it “within a reasonable time” (Section 1735 of the Czech Civil Code). What is reasonable, however, is not clearly defined and depends on the specific circumstances— for standard goods it may be 24–48 hours, for complex services perhaps a week. Without a clear deadline, there is a risk that the parties will not be aware of when the contract was formed, or whether it was formed at all.

Typical risks and ways of protection

Risks and sanctions	How ARROWS can help (office@arws.cz)
Uncertainty as to whether a purchase order forms a contract: The buyer believes the contract has been concluded, while the seller believes it is still only in negotiations. If an issue arises, a dispute follows.	ARROWS, a Prague-based law firm, will review all communication between the parties, the terms and conditions and the context, and determine whether a contract truly exists. Where appropriate, we will help negotiate an unambiguous written confirmation or the conclusion of a new contract.
Missing essential terms (unclear price, subject matter, delivery time): The purchase order is so vague that disputes later arise over what the parties actually agreed.	ARROWS attorneys in Prague specialize in drafting and reviewing contracts and purchase orders. They will ensure that all essential terms are clear, precise, and consistent with each other without contradictions.
Terms and conditions are not properly published, so they do not apply to the contract: The seller thought they had protective clauses, but the court did not recognize them.	ARROWS will assess whether your terms and conditions meet all legal requirements for publication and incorporation into the contract under Czech law. If not, we will help correct them and ensure they are effective going forward.
The seller modifies the purchase order; the buyer does not know what to do: The seller changes the price, quantity, or deadline, and both parties are unsure whether it is still acceptable.	ARROWS will assess whether this is a material or non-material change. If it is a material change, it is effectively a new offer and it must be clarified whether the other party accepts it. ARROWS can assist in the negotiations.
A dispute over whether a contract exists leads to court proceedings: The absence of a clear contract has caused both parties to file claims with mutually exclusive versions of the facts.	ARROWS, a Prague-based law firm, will represent you in court proceedings. Using evidence, legal documents, and our experience, we will assert your legal position.

Contract to Conclude a Future Contract – how it differs from a standard purchase order

There is also a specific legal construct known as a contract to conclude a future contract (Sections 1785–1788 of the Czech Civil Code). This is a type of pre-contractual arrangement in which the parties first agree that they will conclude another contract in the future (the so-called implementing contract) with precisely defined content.

In practice: The buyer and the seller agree that they will in the future enter into a purchase agreement for a specific property at an agreed price, with the same financing and other terms. Later, when everything is ready, they execute the final purchase agreement in accordance with the terms of the prior arrangement.

According to established case law, if the parties later conclude the implementing contract (in our example, the final purchase agreement) on different terms than those contained in the original contract to conclude a future contract, the new terms apply, not the old ones. Therefore, if the pre-contractual arrangement promised an extended warranty of 36 months, but the final contract did not include it, the buyer cannot claim the extended warranty.

This implies that if the parties wish to agree the content of the future contract in a pre-contractual arrangement, it is important to ensure that all such terms are subsequently also included in the implementing contract. It is advisable to label the implementing contract as “pursuant to the prior arrangement” or even attach the text of the prior arrangement as an appendix.

Liability for defects, inextricably linked to the formation of the contract

Once a contract is concluded, the rights and obligations of both parties arise. One of the most important is the right arising from defective performance (often referred to as liability for defects) – i.e., that the seller is liable for the sold item having the agreed characteristics or at least the usual characteristics.

Under the Czech Civil Code (Section 2165(1)), the buyer may assert rights arising from a defect that appears in consumer goods within 24 months of acceptance. If a defect appears within one year of acceptance, it is presumed that the item was defective already upon acceptance (Section 2161(2)) – the buyer does not have to prove it.

The buyer has the right (especially in consumer contracts), as defined by the European Commission, to:

Request that the defect be remedied by repairing the item.
Request delivery of a new item free of defects.
Request a discount from the purchase price.
Withdraw from the contract (in the event of a material breach of contract or a defect that cannot be remedied, etc.).

In consumer contracts, these rights are strongly protected by law and cannot be contractually limited to the detriment of the consumer. By contrast, in contracts between businesses, the scope of rights arising from defective performance may be modified by agreement of the parties, for example by agreeing a shorter period for notifying defects or excluding liability for certain defects (e.g., a sale “as is” under Section 1918 of the Czech Civil Code).

If the seller stated in the purchase order “The goods are sold ‘as is’ without warranty,” the buyer must be careful. In consumer contracts, such a clause would be invalid; in contracts between businesses, it could be valid (provided the terms and conditions are properly published and the other party agreed to them).

Contractual penalties, conditions, and other security instruments

A purchase order or contract often contains a so-called contractual penalty – an amount agreed in advance that the debtor will pay if they breach their obligation (e.g., fail to deliver on time).

Contractual penalties are valid, but certain rules apply (Sections 2048–2051 of the Czech Civil Code):

They must be clearly defined – what breach triggers payment and in what amount.
They should not be unreasonably high – a court may reduce them if they are excessive (judicial moderation of a contractual penalty under Section 2051 of the Czech Civil Code).
In consumer contracts, they must be understandable, must not be surprising, and must not be unreasonably high; otherwise, they may become invalid as unfair contractual terms.
If a contractual penalty is set for exercising the right to withdraw from the contract (where the law grants this right), such a clause will be invalid because it would unreasonably restrict the consumer’s right.

Contractual penalties have a different legal effect than damages:

A contractual penalty is a lump-sum compensation – it is payable regardless of the amount of actual damage incurred.
Damages are calculated based on the actual loss incurred, which the creditor must prove.

As a general rule, agreeing a contractual penalty results in the loss of the right to damages arising from the same breach of obligation, unless the parties expressly agreed that the penalty is “without prejudice” to the right to damages (Section 2050 of the Czech Civil Code).

Final summary

A purchase order and a contract are not automatically the same. A purchase order is an offer to conclude a contract, which becomes a contract only upon acceptance by the seller. If the seller rejects the purchase order, modifies it, or does not respond to it, a contract usually does not arise – and the seller’s silence does not mean acceptance.

Terms and conditions play a key role: they determine whether the purchase order itself forms a contract or whether additional confirmation is required. However, if the terms and conditions are not properly published and are not clearly referenced, they do not apply to the contract at all.

The contract must contain the essential elements: identification of the parties, a clear definition of the subject matter and the price (or the method of determining it). Without these, the order is vague and its legal status is unclear.

The absence of a clear and written documented contract is one of the most common causes of commercial disputes. The buyer believes the seller is bound, while the seller believes they are reserving freedom of decision-making. When the situation becomes complicated, each party defends a different legal position – and the court must decide the dispute.

You should have clear terms and conditions that you will refer to with every order. The order should contain all essential elements, including the exact price and deadline. The seller should confirm the order in writing. The buyer should have an interest in receiving the confirmation. By following this approach, both of you will ensure legal certainty.

If you have doubts as to whether your ordering and contracting system meets legal requirements, or if you find yourself in a situation where you are not sure whether a contract exists between the parties or what its terms are, contact the lawyers at ARROWS, a Prague-based law firm.

They will help you not only review existing communications and determine your legal status, but also propose how your system can be improved to avoid similar problems in the future. In addition, ARROWS, a Prague-based law firm, is insured up to CZK 400,000,000, which guarantees that you have a reliable legal partner who stands behind their work. Email us at office@arws.cz.

FAQ - Frequently asked questions about commercial contracts and orders

1. Are email orders legally binding?
Yes, emails are considered a written form of communication. If an email order contains the essential elements and the seller replied with a confirmation or began performance, the contract has been formed. It is important that the email can be proven to have been sent from the seller’s account and that it is clear this is order-related communication, not just an informal chat.

2. What should I do if the seller claims they did not send an order confirmation, but in fact started preparing the goods?
The commencement of actual performance may be considered a tacit acceptance of the offer (Section 1744 of the Civil Code), thereby forming a contract. However, this is a disputable matter and a court would assess it on a case-by-case basis. To avoid ambiguity, it is advisable to ask the seller for written confirmation or keep evidence of the start of performance (photos, communications, records). The attorneys at ARROWS, a Prague-based law firm, can analyse the specific situation and determine your legal position. Contact us at office@arws.cz.

3. Can I agree in the order that the goods are sold without a warranty?
Between businesses, yes – if you clearly agree on it and the terms and conditions include it, and the other party agrees (Section 1918 of the Civil Code). In consumer contracts (where the buyer is a natural person who is not purchasing for business purposes), this is impossible – consumers are entitled to statutory rights for defective performance for up to 24 months (Section 2165 of the Civil Code) regardless of what you write in the terms and conditions.

4. Does a contract exist between us if we agree verbally on a purchase but do not put anything in writing?
If it concerns ordinary goods and not real estate, theoretically yes – a contract may also be formed orally (Section 559 of the Civil Code). In practice, however, this is very problematic, because if issues arise later, it will be difficult to prove what the parties agreed.
Any defects will have to be proven by witness testimony. We recommend always sending at least an email or SMS confirming the agreed order – you will then have written evidence.

5. What happens if the order is imprecise and the seller fulfils it “close” to what we ordered?
If the seller delivers something that materially differs from the order (for example, a different model, a different colour, a smaller quantity), this constitutes defective performance or even a failure to deliver what was agreed. You are entitled to exercise rights arising from defective performance – for example, request delivery of the correct goods, a discount, or, in serious cases, withdraw from the contract. If the discrepancy concerns the price (the seller wants more), they may agree an additional payment – but only if you agreed to it.

6. What risk do we face if our terms and conditions are not visible on the website?
Very high. If the terms and conditions are not properly published and are not visibly referenced in the ordering process, they do not apply to the contract at all. All your protective provisions (limitations of liability, contractual penalties, limitations on complaints/claims) then do not apply. Instead, stricter statutory standards apply, which are often disadvantageous for the seller. The attorneys at ARROWS, a Prague-based law firm, can help you properly publish your terms and conditions and bind them to orders. Write to office@arws.cz.

Notice: The information contained in this article is of a general informational nature only and is intended for basic guidance on the topic, based on the legal state as of 2026. Although we take maximum care to ensure accuracy, legal regulations and their interpretation evolve over time. We are ARROWS, a Prague-based law firm, an entity registered with the Czech Bar Association (our supervisory authority), and for maximum client security we are insured for professional liability with a limit of CZK 400,000,000. To verify the current wording of regulations and their application to your specific situation, it is necessary to contact ARROWS, a Prague-based law firm, directly (office@arws.cz). We accept no liability for any damages arising from the independent use of the information in this article without prior individual legal consultation.

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