Статья 'Сравнительный анализ опциона на заключение договора и опционного договора ' - журнал 'Юридические исследования' - NotaBene.ru
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Reference:

Comparative analysis of an option to conclude an agreement and an option agreement

Murdalov Deni Ruslanovich

LLM, Senior Associate of AB "A2"

121099, Russia, Moskva oblast', g. Moscow, ul. Smolenskaya, 10, kv. 161

dmurdalov@yandex.ru
Other publications by this author
 

 

DOI:

10.25136/2409-7136.2022.3.37590

Received:

20-02-2022


Published:

01-03-2022


Abstract: In this paper, an option to conclude a contract and an option contract are considered in a comparative aspect. The object of the study is an option relationship or a relationship that develops as a result of the application of the norms of civil legislation on options. The subject of the study is the norms of the Civil Code of the Russian Federation governing the conclusion of an agreement on the granting of an option to conclude a contract and an option contract. The main purpose of the work is to compare the option to conclude an agreement and an option agreement, to identify common and distinctive features of the mechanisms under Articles 429.2 and 429.3 of the Civil Code of the Russian Federation. В В В  The scientific novelty of the study lies in the fact that in this paper a comparative analysis of the option to conclude a contract and an option contract is carried out. The norms governing the options constructions under consideration have been subjected to a detailed study and analysis. The results of the study, which reflect the scientific novelty of the work, are manifested in the differentiation of two adjacent options as common constructions. The paper considers the option to conclude a contract and an option contract in a comparative aspect, highlights the adjacent and distinctive features of both designs, concludes about the common purpose of option designs, about the features of mechanisms, as well as the need to improve Articles 429.2 and 429.3 of the Civil Code of the Russian Federation.


Keywords:

option, option agreement, option agreement, irrevocable offer, offer, contract, civil law, corporate law, organizational agreement, to choose

This article is automatically translated. You can find original text of the article here.

The right to dispose of a choice, including entering into a contract or demanding a certain action from the other party, may constitute an independent subject of the transaction. Such a transaction has received the name "option" in global practice (from the English verb "to opt", which in translation into Russian means "to choose"). The prevalence of options is directly predetermined by their flexibility, as well as the relevance of risk insurance in the modern world.

To one degree or another, an option is always a form of direct or indirect hedging of risks. If we summarize this idea, we can give an example when, knowing about the possibility of a negative circumstance, we can try to smooth it out by agreeing on the conditions defined today, thereby ensuring the risk. In this regard, it is not surprising that options have become so popular, including on stock markets.

In Russia, professional turnover participants, even before the introduction of the tools in question, made creative attempts to adapt it to their economic needs, using the mechanisms that existed at that time. Already in 2006, in the proceedings of the Supreme Arbitration Court of the Russian Federation, there was a case on the recognition of ownership rights to a share in the authorized capital of the company under a purchase and sale agreement on the terms of an option concluded back in 2002.[1] Later, in 2010, the Eighteenth AAC considered a dispute in which contracts for the purchase and sale of stock options were disputed.[2] All this suggests that familiarity with options in the domestic legal field occurred even before the introduction of the relevant changes, which will be discussed further.

Officially, in Russian legislation, the option as a general design was implemented in the Civil Code of the Russian Federation[3] (hereinafter – "The Civil Code of the Russian Federation") with the introduction of the Federal Law "On Amendments to Part One of the Civil Code of the Russian Federation" dated March 08, 2015 No. 42-FZ[4] (hereinafter referred to as "FZ No. 42") under Articles 429.2 and 429.3 of the Civil Code of the Russian Federation. It is noteworthy that the legislator did not provide for any one design, but two models at once, while very similar in nature at first glance. It is the introduction of an option to conclude a contract and an option contract at the same time that determines the importance of considering them in a comparative context.

An option to conclude a contract in accordance with clause 1 of Article 429.2 of the Civil Code of the Russian Federation can be defined as an agreement under which one party, through an irrevocable offer, grants the other party the right to conclude a contract. Based on clause 1 of Article 429.3 of the Civil Code of the Russian Federation, it is possible to define an option agreement as an agreement under which one party has the right to require the other party to perform certain actions within a specified period.

Both constructions provided for by the Civil Code of the Russian Federation have a number of related characteristics, they are synallagmatic, consensual, urgent, as well as compensatory.

Speaking about the related features of options, first of all, it should be emphasized that they are united, according to the author, by a single goal. The latter is expressed by the order of the "right to choose" the occurrence or non-occurrence of certain legally significant consequences, such as the conclusion of a contract on certain conditions or the transfer of property. At the same time, the disposal of the "right of choice" is the subject of these constructions, although with noticeable differences in relation to the time of their occurrence.

It is obvious that persons entering into option agreements fall into an asymmetric relationship in which one person has the "right of choice" regarding the occurrence of legal consequences for another person. Such a relationship must be balanced in some way. And that is why an essential element of options is that they are paid by default, unless the opposite is directly fixed by the parties.

In accordance with clause 1 of Article 429.2 of the Civil Code of the Russian Federation, "an option to conclude an agreement is provided for a fee or other counter-provision, unless otherwise provided by an agreement, including one concluded between commercial organizations," and clause 2 of Article 429.3 of the Civil Code of the Russian Federation says that "for the right to make a claim under an option agreement, the party pays the amount provided for by such an agreement a monetary amount, except in cases where an option agreement, including one concluded between commercial organizations, provides for its gratuitousness, or if the conclusion of such an agreement is due to another obligation or other legally protected interest that arise from the relations of the parties."

As can be seen, both norms provide for some kind of counter-provision for the right and withdrawal in the form of the possibility of the parties to agree on a gratuitous nature, including in relations with the participation of commercial organizations. At the same time, with a more detailed analysis of the norms, it is possible to notice small, but very important, differences in terms of the form of counter-provision. For example, an option to conclude a contract is granted for (1) a fee or (2) another counter-provision, i.e. the norm explicitly provides for the possibility for the parties to determine the form of counter-provision (money and/or other benefit). While clause 2 of Article 429.3 of the Civil Code of the Russian Federation provides only money as payment for the right to make a claim under an option agreement. However, the same rule, as an alternative to paying a sum of money, provides for the possibility of concluding an option agreement conditioned by a legally protected interest. It is assumed that the latter takes place, including in situations where the option contract has an accessory character and performs a security function. Despite this, it remains not entirely obvious why the legislator expanded the forms of counter–provision in the case of an option to conclude a contract, and narrowed it in another option contract.

With regard to the gratuitousness of options, it can be assumed that any subject of civil law, guided by economic rationality, will not want to enter into a relationship that obliges him in relation to another person, but does not oblige the latter in relation to him. According to the author, such an assumption in itself, including in relation to commercial legal entities, is caused by the desire of the legislator to make options as flexible as possible. The fact is that in complex relationships in which retribution is not obvious at first glance, it is always assumed. An example is the sale of a business whose financial indicators cannot be calculated on a certain date. In order to insure himself, the buyer acquires the company, but enters into an option with the sellers in relation to it, according to which the latter, if they do not achieve the minimum indicators, will buy back the sold company. On the one hand, it may seem that sellers are not interested in such a thing, but on the other hand, they understand that otherwise their company would not have been sold, and believe that the company will achieve results and it will not have to be bought back.

It should also be mentioned that options are assumed to be fixed-term transactions, which should have some foreseeable period of granting the "right of choice". Based on clause 2 of Article 429.2 of the Civil Code of the Russian Federation, it can be said that the legislator took care of all options for concluding a contract in which there is no deadline, providing, firstly, that the option must contain a deadline, and secondly, that if there is no deadline in the option to conclude a contract, it is 1 (One) year. There are no such indulgences in the option agreement and the term for it is an essential condition. [5] Non-compliance with the requirements for setting the deadline may lead to non-conclusion of the contract. [6]

Another important element of optional structures is their shape. In accordance with clause 5 of Article 429.2 of the Civil Code of the Russian Federation, the option to conclude a contract must be in the form established for the contract to be concluded. In turn, Article 429.3 of the Civil Code of the Russian Federation does not regulate the issue of the form of the option contract in any way, due to the specifics of the design. It can be assumed that if under an option agreement one party has the right to require the other party to conclude a contract, then the form of such an option agreement must correspond to the form required for the conclusion of the contract. Thus, if there are no contradictions, then the option transactions in question can be made orally or in writing.

Here I would also like to draw attention to the following paragraph of Article 429.2, paragraph 6, which explicitly provides that an option to conclude a contract may be included in another agreement, unless otherwise follows from the substance of such an agreement. However, by virtue of clause 3 of Article 421 of the Civil Code of the Russian Federation, civil subjects have the right to conclude a contract that contains elements of various contracts provided for by law or other legal acts (a mixed contract). It should also be noted that the issues of including the text of one agreement in another are rather issues of legal technique applied to a particular agreement. In this regard, the approach of the legislator in this part is not entirely clear and the question remains why there is a clause in the article on the option to conclude a contract that repeats, albeit indirectly, the provisions of the article of the Civil Code of the Russian Federation on freedom of contract, but there is no similar clause in relation to Article 429.3 of the Civil Code of the Russian Federation. According to the author, the absence of an independent clause in the article of the Civil Code on the possibility of including an option contract in another agreement does not prevent this possibility in any way. Moreover, it can be concluded that Clause 6 in Article 429.2 of the Civil Code of the Russian Federation is redundant.

Among other differences between the designs, one can single out the built-in possibility of assignment of the right to acceptance in the option to conclude a contract, unless otherwise provided by the parties to such relations or does not follow from the substance of the agreement being concluded. This also implies the possibility of limiting the assignment of the right of acceptance. In turn, according to the author, the right under the option agreement can also be assigned without any restrictions in accordance with the relevant articles of the Civil Code of the Russian Federation.

Finally, it should be noted that both articles on options contain a reference to the fact that the specifics of certain types of options can be established by law. Is it possible in this regard to call, for example, the issuer's option such a special type of option? It should be assumed that this is an independent subject of research. At the same time, there is no doubt that the versatility of modern relations, as well as the rapid development of digital technologies, can lead to the emergence of special options that have an unambiguously specific relationship to the structures under consideration.

If we summarize the research, we can conclude that, despite the apparent similarity, an option to conclude a contract and an option contract are fundamentally different legal structures that have a common goal and similar characteristics. It is also obvious that the regulatory regulation of options under Articles 429.2 and 429.3 of the Civil Code of the Russian Federation is imperfect and requires modernization in one part, and unification in the other.

[1] Resolution of the Federal Antimonopoly Service of the Ministry of Defense of 24.03.2008 N KG-A41/1999-08-P // SPS "ConsultantPlus".

[2] Resolution of the Eighteenth AAS of 27.12.2010 N 18AP-10982/2010 in the case N A76-5680/2010 // SPS "ConsultantPlus".

[3] The Civil Code of the Russian Federation (part one) of 30.11.1994 No. 51-FZ (ed. of 28.06.2021) // Collection of Legislation of the Russian Federation. – 05.12.1994. – No. 32. St. 3301.

[4] Federal Law No. 42-FZ of 08.03.2015 "On Amendments to Part One of the Civil Code of the Russian Federation" // Collection of Legislation of the Russian Federation.  – 09.03.2015. – No. 10. – St. 1412.

[5] Resolution of the Arbitration Court of the Moscow District of 06.06.2018 N F05-11409/2017 in the case N A41-60107/16 // SPS "ConsultantPlus".

[6] Ibid.

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A REVIEW of an article on the topic "Comparative analysis of an option to conclude an agreement and an option agreement". The subject of the study. The article proposed for review is devoted to topical issues of comparing the categories "option to conclude an agreement" and "option agreement". The author studies the general and distinctive characteristics of these agreements from the point of view of theory, legislation and practice. The norms of Russian legislation, court decisions and opinions of scientists are chosen as the subject of the study. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The goal can be designated as the consideration and resolution of certain problematic aspects of the issue of the ratio of the option to conclude an agreement and an option agreement. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of judicial practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of the Civil Code of the Russian Federation). For example, the following conclusion of the author: "In accordance with paragraph 1 of Article 429.2 of the Civil Code of the Russian Federation, "an option to conclude an agreement is provided for a fee or other counter-provision, unless otherwise provided by an agreement, including concluded between commercial organizations," and paragraph 2 of Article 429.3 of the Civil Code of the Russian Federation says that "for the right to make a claim under an option agreement, the party pays the amount provided for by such the contract provides for a monetary amount, except in cases where an option agreement, including one concluded between commercial organizations, provides for its gratuitousness or if the conclusion of such an agreement is conditioned by another obligation or other legally protected interest that arise from the relations of the parties."" It is necessary to positively assess the possibilities of an empirical research method related to the study of judicial practice materials (the author draws conclusions based on the Resolution of the Federal Antimonopoly Service of the Ministry of Defense dated 03/24/2008 N KG-A41/1999-08-P, the Resolution of the Eighteenth AAC dated 12/27/2010 N 18AP-10982/2010, the Resolution of the Arbitration Court of the Moscow District dated 06.06.2018 N F05-11409/2017) Thus, The methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of distinguishing the related categories of "option to conclude a contract" and "option agreement" is important and necessary, since it allows us to identify the essential features of each of these phenomena. The proposed agreements have a number of similar features, which does not always allow, under the conditions of the principle of freedom of contract, to establish which contract was actually concluded. In addition, theoretical problems may be caused by the question of the relationship of the above structures with other agreements (framework, preliminary, etc.). That is, the place of the phenomena under consideration in the system of contract law is in itself a difficult scientific question. On the practical side, it is necessary to recognize the need for scientifically based recommendations for practicing lawyers and judges in order to correctly distinguish between specific contracts and apply the necessary legal norms in the event of litigation. The examples from judicial practice given by the author in the article clearly demonstrate this issue. Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "despite the apparent similarity, an option to conclude a contract and an option agreement are fundamentally different legal structures with a common purpose and similar features. It is also obvious that the regulatory regulation of options under Articles 429.2 and 429.3 of the Civil Code of the Russian Federation is imperfect and requires modernization in one part, and unification in the other." These and other theoretical conclusions can be used in further scientific research. Secondly, the author suggests ideas to identify the meaning of the current domestic legislation. In particular, "Speaking about the related features of options, first of all, it should be emphasized that they are united, in the author's opinion, by a single goal. The latter is expressed by the order of the "right to choose" the occurrence or non-occurrence of certain legally significant consequences, such as the conclusion of a contract on certain conditions or the transfer of property. At the same time, the disposal of the "right of choice" is the subject of these constructions, although with noticeable differences in relation to the time of their occurrence." The above conclusion may be relevant and useful for law-making activities. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to legal problems related to the definition of legal regulation and the ratio of contractual structures in accordance with current legislation. The content of the article fully corresponds to the title, as the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Vitryansky V.V., Karapetov A.G., Shitkina I.S.). Many of the cited scientists are recognized scientists in the field of civil law. I would like to note the author's use of a large number of materials of judicial practice, which made it possible to give the study a law enforcement orientation. However, it is worth saying that the list of references is not great: the author has studied, according to the bibliography, only four scientific papers. However, in the context of the purpose of the stated research, it seems that this can be allowed, because the option agreement and the option to conclude a contract have appeared recently, a large amount of scientific literature on the research topic is not yet available. Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study, taking into account the fact that a large amount of scientific literature on the research topic is not yet available. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the issue of distinguishing an option agreement and an option to conclude an agreement under Russian law. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"
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