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contractual design. Option contractual structures can be concluded solely on a compensatory basis, as between entities of entrepreneurship, and as a rule, there can be no gratuitous relations because of the contradiction of the last essence of entrepreneurial activity. Despite the possibility provided by articles 429.2 and 429.3 of the Civil Code of the Russian Federation to conclude option contractual constructions on a gratuitous basis, it is understood that the chase of both sides by other parties of other goals and interests that are of a property nature is not a gratuitous option contractual structure.

5.This research argues that the legal definitions of the option to conclude a contract and option contracts do not contain all the essential conditions for wholesale contracts that are objectively necessary for the conclusion and execution of contracts in the form of an option. Based on the legal nature of the option, which is an essential condition, and not the only a condition when it comes to performance, but also a condition for counter settlement in monetary or other form.

6.It is proved, that if the option structure is invalid, the main obligation arising on the basis of such an option structure becomes invalid as well. The mechanism itself of the origin of the unique right of performance requirements in the event becomes outpowered. Such a transformation of the option contractual structure distorts the agreed will of the parties to the contract, primarily aimed not at obtaining the results of the contract itself, but for acquiring just the right to demand fulfilment of obligations contracts up to a certain time and the right to choose further development of contractual relations, and cannot fully comply the volume of a single economic goal.

In addition, the work substantiated and argued a number of proposals to improve the current legislation, namely:

1.The chapter twenty-one of the first part of the Civil Code of the Russian Federation shall be supplemented with a new article 308.3, entitled "Option obligation", as follows:

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"An option obligation is a voluntary obligation of the debtor to perform predetermined actions, or to cease the commission of pre-specified actions, or to refrain from doing so at the request of the lender, declared by the latter at its discretion, within the period agreed between the creditor and the debtor. If the authorized creditor does not apply for the claim within the period specified in the obligation, the obligations voluntarily assumed by the debtor cease "

In this regard, the existing article 308.3 of Chapter 21 of the Civil Code entitled "Protection of creditor's rights under an obligation" should be designated by the number 308.4 of chapter twenty-one of the Civil Code of the Russian Federation.

2.To supplement Chapter 22 of the second part of the first Civil Code of the Russian Federation with Article 320.2 entitled "Execution of an option obligation" as follows:

"From the moment of receipt of the demand for the performance of an option obligation claimed by an authorized creditor or a person authorized by the creditor, the debtor is obliged, on predetermined conditions between the debtor and the creditor, to perform actions specified by the option obligation, or to stop the actions that are provided by the option, or refrain from performing the actions stipulated by the option obligation.

The debtor has the right to refuse to fulfil the option obligation if the creditor has missed the time limit for the application of the option demand, established by agreement between the creditor and the debtor.

By agreement between the creditor and the debtor, the term provided to the debtor for fulfilment of the preparations for the performance of the obligation specified in the option obligation and calculated from the moment of receipt by the debtor of the creditor's demand for the performance of the option obligation may be established.

3.State paragraph 1 of Article 429.2 of the Civil Code of the Russian Federation in a new version:

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"By virtue of the agreement to grant an option to enter into a contract (option to conclude an agreement), one party grants to the other party the right to enter into one or more contracts within a certain period on the conditions stipulated in the agreement on granting the option to conclude a contract. The agreement on granting an option to conclude a contract must contain all the essential conditions of the main contract. The option to conclude a contract is granted for a value received or because of the achievement of another economic goal or other counter performance. The parties are entitled to conclude the contract in the manner, terms and conditions stipulated in the agreement on granting the option to conclude the contract. "

4.State paragraph 2 of Article 429.3 of the Civil Code of the Russian Federation in a different wording, deleting the mention of a no-fee option agreement:

"For granting the right to claim under the option agreement, the empowered party is obliged to pay the debtor the amount of money provided for by such contract, except for cases when the conclusion of the main contract is conditioned by another obligation or other interest protected by law that derive from the relations of the parties."

5.Chapter twenty-seventh part of the first Civil Code of the Russian Federation shall be supplemented with a new article 429.4, entitled "Exchange Option Contract", which reads as follows:

"1. The stock exchange option agreement recognizes the agreement of two or more persons, according to which the creditor or creditors have the right to demand from the debtor or debtors during the contractual period of the performance of a certain contract of action, as well as the payment of money in the formation of a difference in prices or the values of the underlying asset determined by the contract.

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2.The underlying asset of a stock option contract may be commodities, securities, currency, currency values, as well as circumstances that the parties recognized in the stock option agreement as the underlying asset.

3.The stock option agreement cannot be included in another exchange or over-the-counter agreement.

4.A stock option agreement may be concluded only at organized tenders between their participants, including those performing the function of representatives and carrying out their activities on the basis of a license of an exchange intermediary or an exchange broker.

5.The provisions stipulated by this Code on the option obligation and the option agreement are applied to the stock option agreement unless otherwise provided by law, other regulatory acts or in accordance with the established rules of the tender organizer".

In this regard, the existing Article 429.4 of Chapter 27 of the Civil Code of the Russian Federation, entitled "Contract with execution on demand (subscriber agreement)" is designated by the number 429.5 of the Civil Code of the chapter of the twenty-seventh Civil Code of the Russian Federation.

The theoretical significance of the results obtained in the course of the thesis research is the development of conditions for the definition of an option as a contractual institution, the formulation of the distinctive features of option agreements inherent exclusively in these contractual structures, determining their differences from other contracts, establishing the place of option contractual structures in the system of civil law contracts, determining the principles of invalidity of contracts using option elements and option contractual agreements the duality of the objects of contracts with the application of options.

The findings of the study allow further development and more detailed elaboration of the legal nature of various types of options, not limited to their practical application solely as a tool for urgent stock deals, but to introduce these contractual structures in various areas of business.

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The practical significance of the thesis research is that the results obtained can contribute to the further development of the contractual institute of the option, not limited to introducing into the entrepreneurial activity only option contractual structures, the legal definition of which is contained in the Civil Code of the Russian Federation, and to give entrepreneurs the opportunity to independently use such an option contractual structure, based on the subjective right of the claim for the performance of pre-determined between the parties actions that would most fully correspond to their economic interests. In addition, the thesis research can contribute to the formation of a uniform and sustainable law enforcement practice in the implementation and use of option contractual structures in various areas of business.

The degree of reliability and approbation of research results: the main provisions and conclusions are set forth in the articles of the author published in periodicals, including those recommended by the Higher Attestation Commission of the Ministry of Education and Science of the Russian Federation. The results of the thesis research were also discussed at the meeting of the Commercial Law Department of the Faculty of Law of St. Petersburg State University.

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CHAPTER 1. The concept and the main features of an option to conclude a contract and an option agreement

1.1. The concept of an option to conclude a contract and its main features.

The development of legislation has led to the fact that many contractual structures that were not previously named in the Civil Code of the Russian Federation, but which have passed the path of long-term use and approbation in everyday business activities find their legal use in the norms of the Civil Code of the Russian Federation. This means that such contractual structures fully correspond to the interests and goals of the participants in civil relations. An example of contractual arrangements subsequently enshrined in the Civil Code of the Russian Federation may be an option to conclude a contract and an option agreement. Today, considering option contractual structures, we can rely on their legal definitions, enshrined in articles 429.2 and 429.3 of the Civil Code of the Russian Federation.

The option to enter into a contract is a bilateral deal in which two parties participate – the party that provides the offer (the offeror) and the party that agrees to accept the offer (the acceptor). The bilateral nature of this contractual structure is confirmed by the existence of an agreed will of the parties (the offeror and the acceptor) aimed at achieving the single goal of the deal – emergence of the acceptor’s right to demand conclusion of a main contract.

The option to enter into a contract is an agreement on the terms and conditions of the conclusion of the main contract. Further, it is proposed to call such an agreement an option agreement. The term "option agreement" is an agreement of the parties to provide an option to conclude a contract and a set of conditions for concluding a main contract. The conclusion of such an agreement is impossible without the explicit will of both parties, which proves the bilateral nature of the option to conclude a contract.

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In business activity, the most valuable element in the contractual structure in question is precisely the element of the agreement that precedes the offer and its acceptance. Such an agreement allows to reflect all the conditions without exception (including directly and not related to the option, but having significance for the parties), in the event of which it is possible to conclude a main contract. In this case, the offer sent by one of the parties and its subsequent acceptance is, in the author's opinion, of secondary importance.

The contractual structure of the option to conclude a contract provides for the commercial action of the offeror to make an irrevocable offer. Commercial character can be achieved both through payment, and by providing other counter performance. Thus, the legislator allows the use of an option agreement as a contractual mechanism, allowing to detail mutual economic ties between business entities.

The option to conclude a contract generates only one obligation of the offeror – to send an irrevocable offer. The very fact of the conclusion of the main contract and, accordingly, the acceptance of the offer depends solely on the will of the acceptor.

The moment of execution of the option agreement is the moment of receipt by the acceptor of the offer containing the offer to conclude the main contract. Execution of the option agreement is unconditional – the offeror from the moment of conclusion of the option agreement and within the time period established by this agreement should send an offer to the acceptor for the conclusion of the main contract. The Civil Code of the Russian Federation does not provide an opportunity to conditionate the offer to the occurrence of some event within the option to conclude a contract.

The option to enter into a contract is also a concurrently agreed will of the parties regarding the terms of the main contract. The existence of such a coordinated will expresses the relations of the options parties from the classical relations arising on the basis of the offer and its acceptance.

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The relations of the parties on the conclusion of the main contract are regulated by the terms of the legislation on offer and acceptance. At the time of the conclusion of the agreement, neither the acceptor nor the offeror can establish with certainty whether the offer will be accepted in the specified period of time. The offeror cannot be completely sure of an offer being accepted, as its acceptance is conditioned for the acceptor by a number of external factors, on the basis of which the acceptor will later decide on the expediency of accepting the offer.

Considering the legal definition of an option agreement, V.V. Vitryansky notes that "contained in clause 1 of Art. 429.2 of the Civil Code of the Russian Federation the provision that the option agreement may provide that the acceptance of an offer is possible only upon the occurrence of a condition specified by it, including that dependent on the will of one of the parties, indicates that the said agreement does not apply to contingent deals, and , therefore, the rules of Art. 157 of the Civil Code of the Russian Federation"6.

With this conclusion we can agree only in part. The option agreement is not a contingent deal. Obligations of its parties – to send an irrevocable offer and to pay an option fee – cannot be put under a suspensive condition. In this case the very possibility of accepting an irrevocable offer can be put under the suspensive condition. A suspensive condition in this case is, among other things, the will of the acceptor. Despite the fact that all the essential terms of the main agreement have been agreed by the parties, such a contract can be concluded only if the will of the acceptor is present.

N.B. Shelenkova, considering the stock option, notes that the peculiarity of the agreement on the execution of the option is that the moments of the seller's will to conclude the main option agreement and the option execution agreement coincide7.

6Vitryansky V.V. Reform of the Russian civil legislation. Intermediate results. – Moscow: Statut, 2016. P. 179. [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017).

7Shelenkova N.B. Legal nature of exchange option operations: abstract of the thesis of the candidate of legal sciences – Moscow, 1994. P. 17.

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With regard to the option agreement with the opinion of N.B. Shelenkova we can also partially agree, since her conclusion does not cover the legal position of the buyer of the stock option agreement (the accepting party in the option agreement).

At the time of conclusion of the option agreement, the party – the offeror and the accepting party – express mutual consent for the conclusion of the main contract on the conditions set forth in the option agreement. However, the consent of the accepting party to the implementation of the main contract is put in dependence on the suspensive condition. This suspensive condition is known only to the party – the acceptor. The contractual structure of the option agreement does not provide for the obligation of the accepting party to inform the supplier side of the substance of such a suspensive condition.

The recoupment of an option to conclude a contract fully corresponds to the principle of the legal equality of parties to civil legal relations. The irrevocability of the granting of an irrevocable offer in the design of an option for the conclusion of a contract is of an economic nature and is aimed at reducing the risk of changing the price environment for the relevant goods (work, services) for business entities providing an irrevocable offer for a certain period of time for acceptance8.

As A.G. Karapetov points out, when commenting on the legal definition of an option for concluding a contract, giving an irrevocable offer the offeror entrusts the other party with the unilateral will to unilaterally enter into the contract and himself experiences uncertainty regarding the prospects for acceptance during all this time9.

Agreement with the opinion of A.G. Karapetov can only exist in the part of the inequality of the legal position of the offeror and the acceptor. However, taking

8For example, the Arbitration Court of the Volga-Vyatka District noted that in the option agreement, the buyer's benefit is that he can, but is not obliged to conclude a certain contract with the seller of the right. The seller, meanwhile, is obliged to conclude the contract at the request of the buyer of the option, for which he receives a certain fee (reward). (Decree of the Federal Arbitration Court of the Volga-Vyatka District dated September 23, 2015 No Ф01-2658/2015 on case No А31-7898/2014 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017).

9Karapetov A.G. Ibid. P. 56.

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into account the principle of compensability of the option to conclude a contract, the legal uncertainty of the offeror's position is commensurate with obtaining from the acceptor an appropriate remuneration or achieving a different economic goal, for example, expanding the sales market, increasing sales, etc.

With regard to the statement that one of the parties has the right to put into effect an option to conclude a contract, the opinion in question is, in our opinion, controversial and, as it seems, not completely agrees with the principle of determining the moment of conclusion of a contract established by Article 432 of the Civil Code of the Russian Federation.

The option to conclude a contract contains a dual subject of the contract – the terms of the option agreement and the heads of terms of the main contract. The moment of conclusion of an option to conclude a contract is of a substantial and practical nature, since only from the moment of conclusion of the contract it generates corresponding rights and obligations for its parties10.

The option to conclude a contract is considered being concluded and, consequently, generates rights and obligations for its parties, including the offer, when an agreement has been reached between the offeror and the acceptor under all conditions of the option to conclude a contract, including the essential terms of the contract which are to be concluded in the future. The offer and, accordingly, the acceptance of this offer is not the main contract coming into force but represents only the fulfilment of the obligation and the realization of the property right in accordance with the terms of the option agreement for the conclusion of the contract11.

10E. Gaudemet states that the obligation to conclude a contract is in itself a complete agreement that presupposes the consent of the will and the generating obligation. The obligation to conclude a contract is a contract that generates an action that consists in concluding a new contract. Despite the fact that this definition was made long before the introduction into the Civil Code of the Russian Federation of a legal definition of the option to conclude a contract, it has not lost its relevance and capacity. (Gaudemet E. General theory of obligations/translation from French by I.B. Novitsky. – Moscow: Legal Publishing House of the Ministry of Justice of the USSR, 1948. P. 276.)

11For instance, an option agreement was concluded between business entities for concluding a construction contract. The accepting party expressed its intention to exercise its right to conclude a contract. However, the essential terms of the contract were agreed upon by the parties in advance. And there is a work agreement between them. By acceptance of the offer served under the option agreement, the parties attach a binding nature