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Independently considered option contractual structures generate only a subjective right of claim, which, without its objective composition, has no economic and legal meaning.

However, the presence of elements of other contracts in the contracts relating to the option institute does not affect the election of rules for the legal regulation of contractual relations between the parties. The only significant phenomenon for determining the norm of legal regulation will be the economic substance of such contractual relations.

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obligation is an independent deal whose object is the conclusion of another independent contract. Analysing the obligation to sell, E. Gaudemet also draws attention to the unilateral nature of this obligation41.

However, despite the continuity provided largely due to the works of the Olympiad Solomonovich Ioffe and other authors of Soviet civil law, during the period of the socialist economic system, the option contractual structures were not reflected in the Civil Code of the RSFSR (as amended in 1964), although they were applied in practical economic activities42.

The possibility of introducing an option element into the civil relations system was repeatedly considered.

The possibility of establishing in the preliminary contract a unilateral duty of one of the parties to conclude a basic contract, while the other party will only have the right, at its own discretion, to demand the conclusion of a basic contract within a certain period as A.N. Kutcher points out43.

Also, the French scientist R. Savatie allowed the possibility of concluding a contract by which one person assumes an obligation to sell with the eventual buyer if the latter demands such a conclusion at a certain date and on the conditions specified in the obligation44.

41Gaudemet E. General theory of obligations. М.: Moscow: Legal Publishing House of the Ministry of Justice of the USSR, P. 276-277.

42Section of law of the All-Union Chamber of Commerce. Collection of information materials. Issue 19.

Publishing House “Mezhdunarodnye Otnosheniya”, Moscow: 1965.

Decision of the Foreign Trade Arbitration Commission under the Chamber of Commerce and Industry of the USSR (FTAC) on case No 207/1981 dated March 19, 1982. Section of law of the Chamber of Commerce and Industry of the USSR // Arbitration practice Part 10. – Moscow: Chamber of Commerce and Industry of the USSR, 1985.

State program of privatization of state and municipal enterprises in the Russian Federation for 1992, approved by Decree of the Supreme Council of the Russian Federation dated June 11, 1992 No 2980-I. Bulletin of the Congress of Peoples’ Deputies of the Russian Federation and Supreme Council of the Russian Federation. No 28 dated July 16, 1992. Edition of Supreme Council of the Russian Federation. Мoscow.

Decree of the Government of the Russian Federation dated March 19, 1993 No 271 “On establishment of opentype joint-stock company “Oil Company “Surgutneftegaz” URL.: https://giod.consultant.ru/documents/1248024 (access date 23.02.2018)

43Kucher A.N. Theory and practice of the pre-contact stage: legal aspect. – Moscow: Statut, 2005. P. 286.

44Savatier R. Theory of obligations / translation and introductory art. by: Khalfina R.O. – Moscow: Progress. 1972. P. 167. [Electronic resource]: http://www.lawlibrary.ru/izdanie19280.html. Access date 27.08.2017.

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Until June 1, 2015, option contractual structures were used in entrepreneurial activities and were recognized as unnamed contracts45.

The attribution of an option contractual structure to an unnamed contract in law enforcement practice was conditioned by the definition of the subject of such a contractual structure – the purchase of the right to conclude a contract46.

Any other types of contracts named in the Civil Code of the Russian Federation do not have the subject of a contract that would be similar to the subject of an option contractual arrangement – the acquisition of the right to require the performance of certain actions47.

Plenum of the Supreme Arbitration Court of the Russian Federation in its Decree of March 14, 2014 No. 16 "On Freedom of Contract and Its Limits"48 explained that when evaluating a contract as unnamed it takes into account not its

45Considering the unnamed contracts IA Pokrovsky, referring to the general principle of natural law – pacta sunt servanda (any agreement (if it does not contradict law or morality) must be sacred) states that "... the obligation to fulfil these promises does not follow from recognition non-recognition of them by the state, but from the general requirement of natural law, as a result of which this duty does not depend on its content, on the typicality or originality of this latter. I.A. Pokrovsky also held the view that any contract that does not contradict the law or the general principles of morality has a legal force, even if its content does not fit under any known type of law (Pokrovsky I.A. Major problems of civil law. – Moscow: Kniga po Trebovaniyu, 2013. P. 106). Authors M.I. Braginsky and V.V. Vitryansky note that a set of named contracts of any country – this particularly applies to modern Russia, which is undergoing a radical restructuring of its economy – always lags behind the needs of turnover. This lag is inevitable, since every act dedicated to civil legal relations. Including such a complex as the code, reflects the needs of practice, which are determined only at the time of its publication. The noted peculiarity of legislation is most palpably applied to contractual relations, bearing in mind that the latter are created, albeit in the framework established by law, but by the autonomous will of the participants in the turnover (Braginsky M.I., Vitryansky V.V. Contract law. Book one: General provisions. URL: http://thelib.ru/books/vitryanskiy_vasiliy_vladimirovich/dogovornoe_pravo_kniga_pervaya_obschie_polozheniy a-read-44.html (access date: 25.07.2017).

Classifying the types of contracts OS. Ioffe in the part of legal regulation of an unnamed contract indicates that the rationing of an obligation must be carried out by analogy of the law or in the cases that are subject to the analogy of the law only if an obligation is formed that does not contradict the law (Ioffe O.S. Law of obligation.

– Moscow: Legal literature, 1975. P. 38).

46Decree of the Arbitration Court of the Povolzhye district dated November 21, 2016 No Ф06-14849/2016 on case No А65-4266/2016 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017).

47In his work K.K. Lebedev notes that, with all the details and thoroughness of civil-law regulation, it is impossible to envisage and adequately implement all aspects and nuances of economic turnover in legal forms. The content of economic relations is inexhaustible in its concrete practical manifestations. The application of customs, norms of international law and international contracts, as well as the analogy of law and the analogy of law, makes it possible to cover all economic relations with civil law regulation, however unexpected and unpredictable in its development the market economy was. (Lebedev K.K. Chrestomathy on entrepreneurial and commercial law: General provisions. Legal status of an individual entrepreneur / compilation, preface and comment by К.К. Lebedev. – Saint-Petersburg: 2001. P. 28-29.)

48Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No

16“On freedom of contract and its limits” // Bulletin of the Supreme Arbitration Court of the Russian

Federation. – 2014. – No 5.

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name, but the subject of the contract, the actual content of rights and obligations, that is, the purpose of the deal and the way it is executed.

The fact that option contractual structures were mentioned in some normative legal acts regulating exchange activity does not allow to classify them as a category of named contracts. Legal regulation of option contractual structures in the sphere of exchange activities was of a narrow, specific nature49.

It was not significant that circumstance that option contractual structures were applied in conditions of contracts already mentioned in the Civil Code of the Russian Federation. The use of an option contractual structure transforms the subject matter of the contract itself. After the transformation, the object of the contract is not execution, but only the right to receive performance on demand. In this regard, the option contractual structure cannot be attributed to the category of mixed contracts.

With the adoption of the Federal Act No. 42-FZ of 08.03.2015 "On Amending Part One of the Civil Code of the Russian Federation"50, the legislator proposes to business entities two completed forms with the use of option contractual structures: 1) an option to conclude a contract and 2) an option agreement.

P. 1 of Art. 429.2 The Civil Code of the Russian Federation determines that by virtue of an agreement to grant an option to enter into a contract (an option to conclude an agreement), one party through an irrevocable offer represents the other party the right to enter into one or more contracts on the terms provided by the option. The option to conclude a contract is submitted for a fee or other counter-

49Regarding the scope of legal regulation of an unnamed contract, we should agree with the opinion of A.G. Karapetov and A.I. Saveliev. The mentioned authors note that an agreement that is not stipulated in the legislation for any positive regulation, even if it was mentioned in any law or other normative legal act, can be considered unnamed. Moreover, judging by all the regulation should be civil-law, that is, have the characteristics specified in Art. 2 of the Civil Code of the Russian Federation. The existence of special regulations of a different nature (for example, taxation) in itself can hardly be a basis for recognizing a contract as named (Karapetov A.G., Savelyev I.A. Freedom of conclusion of non-defined contracts and its limits // Bulletin of the Supreme Arbitration Court of the Russian Federation. – 2012. – No 4. P. 18).

50Federal Law dated March 08, 2015 No 42-ФЗ “On introduction of amendments in part one of the Civil Code of the Russian Federation” // Collection of Legislative Acts of the Russian Federation. 09.03.2015, No 10, art. 1412.

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provision, unless otherwise provided by the agreement, including those concluded between commercial organizations. The other party is entitled to conclude an agreement by accepting such an offer in the manner, terms and conditions that are provided for by the option. The option to conclude a contract may stipulate that an acceptance is possible only upon the occurrence of a certain option determined by such an option, including one that depends on the will of one of the parties.

P. 1 of Art. 429.3 of the Civil Code of the Russian Federation establishes that under an option agreement one party, on the terms provided for in this agreement, is entitled to demand, within the period specified by the contract, from the other party the fulfilment of actions stipulated in the option agreement (including paying money, transferring or accepting property), and, the authorized party does not declare the demand within the specified period, the option agreement is terminated. An option contract may stipulate that a requirement under an option agreement is considered declared upon the occurrence of circumstances determined by such a contract.

The Civil Code of the Russian Federation does not disclose the content and subject matter of the option itself as an obligation and a list of rights and obligations that this obligation can generate from its parties, which is necessary for the further development and practical use of option contractual structures.

We believe that the option should be approached not only as a legal contractual structure, but also as a legal tool51 that helps the participants of business relations to effectively build their contractual relations by providing a mechanism for changing the subject of the contractual obligation in a predetermined volume depending on the committed one from the parties of such relations of action.

51 B.I. Puginsky in his work notes that legal means are combinations (combinations) of legally significant actions committed by subjects with an allowed degree of discretion and serving the achievement of their goals (interests) that do not contradict the law and the interests of society. In a narrower sense, legal means legal means can be considered as legal ways of solving subjects by corresponding subjects, achieving their goals (interests). (Puginsky B.I. Civil law instruments in business relations. – Moscow: Yurid. Lit., 1984. P. 87)

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explanation of the Civil Code of the RF on the obligations of the SC RF, it proposes to apply Cl. 310 Civil Code in the systemic relationship with Art. 10 of the Civil Code of the Russian Federation53, that is, to assess the degree of integrity of participants in entrepreneurial relations when establishing a proportionate payment for the termination of the contract.

Thus, the SC RF tries to equate the legal nature of the compensatory mechanism for termination of the contract to a penalty in its explanations and create an opportunity to reduce the price of such a right in a manner similar to the mechanism for reducing the penalty provided for in Art. 333 of the Civil Code of the Russian Federation. Some authors have already expressed an opinion on the similarity of this application of Section 3, Art. 310 Civil Code with the practice of applying the provisions of the Civil Code of the Russian Federation on the reduction of penalties54.

If in terms of compensation for the termination of the contract, in cases where such a right is provided for by the Civil Code of the Russian Federation, the law or other normative act with the position of the RF Armed Forces can still be accepted, then in terms of the paid acquisition of the right to terminate the agreement under the agreement of the parties, the stated position of the RF Armed Forces contradicts the principle freedom of contract. If we develop the abovementioned position of the RF Armed Forces further, we can conclude that, in the

53In particular, the SC RF clarifies that, within the meaning of Article 310 (3) of the Civil Code of the Russian Federation, the obligation to pay the specified amount of money arises from the relevant party as a result of exercising the right to unilaterally refuse to fulfil the obligation or to unilaterally change its terms, or termination of the contract (clause 2 of Article 450.1 of the Civil Code of the Russian Federation). Unless otherwise provided by a law or a contract, from the moment of the implementation of such refusal (change in the terms of the obligation), the initial obligation ceases or changes and an obligation arises to pay a certain amount of money. If it is proved that the amount of this amount is unfavourable to adverse consequences caused by the refusal to fulfil the obligation or a change in its conditions, and also the unfairly unfair exercise of the right to demand payment thereof in this amount, then in such an exceptional case the court is entitled to refuse in its collection in whole or in part Article 10 of the Civil Code of the Russian Federation). (Art. 16 Decree of the

Plenum of the Supreme Court of the Russian Federation dated November 22, 2016 No 54 «On some issues of application of the general provisions of the Civil Code of the Russian Federation on obligations and execution thereof” // legal reference system “Consultant Plus”).

54Karapetov A.G., Pavlov A.A., Sarbash S.V., Sulemanov R.U. Comment to decree of the Plenum of the Supreme Court of the Russian Federation dated 22.11.2016 No 54 “On some issues of application of the general provisions of the Civil Code of the Russian Federation on obligations and execution thereof” // Author of Chapter 11 “Reducing of penalties by court for termination or alteration of contract” A.G. Karapetov. Moscow: Bulletin of the Supreme Arbitration Court of the Russian Federation. No 3 (37). – March 2017. P. 108.

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framework of the principle of conscientiousness of participants in civil turnover, the conscientiousness of the supplier can be evaluated when establishing the value of the products supplied by the contract.

Granting compensated subjective right to one party to change or terminate an existing obligation by its unilateral will is unquestionably based on an option contractual arrangement, especially if the parties to the agreement establish a time period during which such a right can be realized.

However, this design cannot be considered option if the subject of the granted right is not a requirement for the performance of an obligation, but a requirement to terminate an obligation. Such a right must be recognized as an unnamed contractual arrangement, regulated by similar rules of civil law. In particular, the compensatory right to terminate the performance of an obligation or to terminate a contract can be qualified as an agreement on compensation.

Art. 409 of the Civil Code of the Russian Federation provides that by agreement of the parties the obligation may be terminated by the granting of compensation by the payment of money or the transfer of other property.

The compensation is different from the right of the entitled party provided by the option. The compensation procedure is one-off, it does not have a period during which the right of one of the parties to terminate the obligation can be realized. Also, the agreement on compensation is characterized by the existence of a mutual will, while the option right provides for the individual will of the person concerned. The agreement on compensation can be concluded only with respect to the existing obligation, it cannot extend to obligations arising from the contract in the future.

The legal nature of the payment, made both within the performance of the obligation of the compensation, and within the limits of the option, is different. Payment under the compensation is exclusively compensatory. Such payment is primarily aimed at decrease of the negative consequences of one of the parties caused by the early termination of the obligation in the interests of the other party.

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Payment under the option in its legal nature is precisely the price of the acquired subjective law and must be considered according to the rules provided for in Art. 424 Civil Code of the Russian Federation55.

The application to the unnamed option contractual structures of legislative regulation by analogy distorts the actual will of the parties.

In connection with the lack of a legal definition of the option as a whole, as a generic concept, we should agree with the final conclusion of V.V. Vitryansky that the attempt to create a single model of a special new contractual structure (the so-called option contract) without extensive discussion with the professional and legal community should be considered unsuccessful56.

The two finalized contractual structures of the option contract and the option to conclude a contract, proposed by the legislator, do not fully meet the needs of business entities in the option mechanism, as a legal means of constructing a contractual relationship. In their practical contract work, business entities maximally expand the opportunities for forming contractual relations using the option element.

For example, according to the media, the option mechanism was envisaged even in the period from 2008 to 2012 in an agreement between two shareholders of the Public Joint Stock Company "Mining and Metallurgical Company Norilsk Nickel"- the company "US Rusal "and the company "Interros". According to the agreement, one of the shareholders could offer another shareholder to buy the shares of PJSC MMC Norilsk Nickel owned by the latter at a weighted average

55According to paragraph 1 of Art. 424 of the Civil Code of the Russian Federation the performance of the contract is paid at the price established by the agreement of the parties. The only criterion that determines the sufficiency and proportionality of the option fee is in virtue of paragraph 4 of Art. 421 of the Civil Code of the Russian Federation is the mutual will of the parties to the option contractual arrangement, since the terms of the contract, including the condition regarding the price or its components, is determined at the discretion of the parties to the contract. In this regard, the establishment of the amount of option compensation, in contrast to the amount of money paid within the framework of the compensation, cannot be considered from the standpoint of the principle of good faith of participants in civil legal relations established by par 5 Art. 10 10 of the Civil Code of the Russian Federation. Another would be a violation of the balance of economic interests of the parties to the option contractual structure.

56Vitryansky 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).