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The binding party in option contractual arrangements is not entitled to claim a partial performance of the obligation.

Due to the fact that the volume of execution in the subscriber's agreement is established directly by the subscriber, depending on its needs, this contractual structure in business activity is used mainly to build long-term contractual relations in order to obtain certain services.

We should agree with the opinion of V.V. Vitryansky, who notes that the peculiarities of the legal and economic position of the contractor under the subscriber agreement are that he must maintain his material (production) base and the staff in constant readiness in order to be able to fulfil his obligations to the subscriber in accordance with his first demand and at the discretion of the latter. Obviously, this task requires special business management and involves additional costs89.

Law enforcement practice proceeds from the fact that, unlike other contracts that require the party to fulfil requests at the request of the other party, for example, a credit line agreement or a supply contract for goods under orders, the subscriber pays a pre-agreed fee (price) within the subscriber's contract. And this fee does not depend on whether the subscriber has scooped up possible works or services that he can request in this period of time or not. Accordingly, the condition for such a payment can be formulated in the contract as the duty of the customer to pay an equal monthly (monthly, quarterly) payment if the customer did not refuse the consumption of services in this period. Due to the specific nature of the legal nature of the contract in question, a refund in the case of unsolicited execution is impossible90.

Option contractual structures are rather one-time. Their practical goal is to fix the price of a certain product for a certain period of time.

89Vitryansky V.V. Reform of the Russian civil legislation. Intermediate results. – Moscow: Statut, 2016. P. 182.

[Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017).

90Decree of the First Arbitration Court of Appeal dated January 16, 2017 on case No А43-19757/2016.

[Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 23.09.2017).

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Payment of remuneration to the obligated party in the subscriber contract is determined by the time period and does not depend on the number and volume of the subscriber's requirements.

Option contractual arrangements, in contrast to the subscription contract, provide for not periodic payments, but a single remuneration of the obligated party for the right given to it by the obliging party to demand fulfilment of the obligation. They are used mainly in entrepreneurial activities for the conclusion of separate stand-alone deals, since the amount of the obligation to be executed in option contractual arrangements is predetermined.

Thus, the option contractual arrangements differ from the subscriber contract by the mechanism for establishing the scope of the obligation to be executed and the mechanism for paying the remuneration for the granted right of execution.

Option contractual structures are also similar at first glance to the objectives of legal relationships arising from games or wagers.

Initially, by virtue of Art. 1062 of the Civil Code did not receive judicial protection claims arising from any deals based on games and wagers.

In order to resolve disputes between participants in futures deals, including those based on option designs, judicial practice has gone the way of dividing such deals into two conditional categories: deals with actual transfer of goods and deals based on changes in the exchange rate of the commodity price, concluded without intent transfer such goods to the buyer. The last deals were recognized based on the game and did not receive legal protection because of the direct instruction of the law91.

91 Decree of the Federal Arbitration Court of the Moscow district dated August 10, 2005 on case No КГ-

А40/7048-05 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date:

23.09.2017); Decree of the Federal Arbitration Court of the Moscow district dated 29 November 2001 on case

No КГ-А40/6884-01 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 23.09.2017); 13 July 2001 on case No КГ-А40/1919-01-3 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 23.09.2017).

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As a result of the exchange currency market deals, based, including on option designs, were left without legal protection. The erroneousness of this approach is noted by E.V. Ivanova. In particular, she notes that by fictitiously classifying derivative deals to game agreements, the law enforcer underestimates the financial and economic properties of derivative instruments, namely, the property value of the claims and obligations generated by them92.

Separating option contractual structures from games and wagers, law enforcement practice formed the view that the option agreement, unlike gambling, is based on mutually beneficial terms, where one party, on the conditions stipulated by the contract, has the right to demand, within the period specified by the contract, from the other party of the fulfilment of the options provided by the option contract of action, while for the right to claim the party pays the amount of money provided for by such a contract, and in turn, gambling is based th at the risk of a successful agreement concluded by two or more parties to such an agreement among themselves or with the organizer of this game93.

This conclusion of law enforcement practice should be accepted. The main difference between option contractual structures, including the option agreement, from games and bets is that option contractual structures generate or can generate commodity-money relations, and the game or bet provides for transfer by one party in favour of the other party of remuneration depending on the occurrence of a circumstance predetermined by a participant in the game. The game does not generate any other relationship, except for relations that are aleatory.

The emergence of commodity-money relations between the parties of option contractual structures distinguishes these contractual structures from the game and other deals that are exclusively aleatory.

92 Ivanova E.V. Legal qualification of derivative instruments: abstract of the thesis of the candidate of legal sciences. – Moscow, 2006. P. 13.

93 Decree of Khabarovsk territorial court dated August 12, 2015 on case No 4а-480/15[Electronic resource]: Access from the legal reference system “Consultant Plus” (access date 23.09.2017).

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At present, distributor and dealer agreements are widely used in entrepreneurial activities. These contractual structures are classified as mixed contracts and are not named in the Civil Code of the Russian Federation.

The subject of a distribution or dealer agreement is the provision of the right to sell goods protected by legal means of individualization (trademarks, trade names, patents for inventions) in a particular geographic market.

Distributor and dealer agreements contain an element of option contractual structure – the right to demand delivery of goods.

The obligation of an option within the framework of option contractual arrangements generates from the obliging party a clear right, without corresponding responsibilities to it. The obligating party takes this right for a remuneration determined in contractual terms.

As a result, the right of the distributor (dealer) to require the manufacturer to deliver a certain quantity of goods is due to a number of obligations that must be fulfilled by the distributor (dealer) for the realization of such a right (advertisement of the producer's goods, maintenance of a certain volume of sale, etc.). This is the main difference between the right of claim of a distributor (dealer) from the unconditional right of a binding party demand, which arises within the framework of an option contractual structure94.

The main difference between the distribution (dealer) contract and the option contractual structures, in its opinion, is that the distribution (dealer) contract does not cease to operate depending on whether the demand for the supply of goods is declared or not. With such a conclusion, you can agree. It should be added that the distribution (dealer) agreement, based on the elements of the option contractual structure, provides an alternative compensation, as opposed to monetary, counter performance. Such counter performance forms the totality of the duties of the

94 Comparative analysis of the ratio of distribution and dealer agreements was also made by V.Y. Doronkina. In her work V.Y. Doronkina came to the conclusion that the distribution (dealer) agreement is not a contract that can be attributed to option contractual structures, but can contain their elements (Doronkina V.Y. Implementation of a distribution agreement in the Russian law: abstract of the thesis of the candidate of legal sciences. – Saint-Petersburg, 2016. P. 8, 18).

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ownership and obligations in respect of an exchange commodity or a contract for the supply of exchange commodities.

The legal definition of the option deal presented at that time did not have anything in common with the relations of the parties arising in the framework of the option contractual arrangement, since it represented a bilateral deal that did not submit to the will of one of the parties, and the subject of which was the assignment of the property right to obtain the specified the deal of the goods and, accordingly, the duties for obtaining it. At the same time, the existence of such a legal definition of the option deal allowed the form of options to be extended both as deals and for commodity relationships96 that arise on the over-the-counter market.

Subsequently, in connection with the introduction of amendments to the Act on Commodity Exchanges97, the detailed definition of the option was excluded from its text. Such a change cannot be considered successful, because as a result of the deletion of the legal definition of the option at that time, the only legal definition of the option deal, established by the act of legislation, was lost from the act of legislation. Replenishment of this gap was made by the Bank of Russia's adoption of its departmental regulatory act98.

Federal Act No. 39-FZ of April 22, 1996 "On the Securities Market"99 also contains a legal definition of the issuer's option. Article 2 of this Law defines the option of the issuer as an issue security that fixes the right of its holder to purchase within the time period stipulated therein and / or upon the occurrence of the circumstances specified in it of a certain number of shares of the issuer of such option at the price determined in the option of the issuer. The issuer's option is a

96Decree of the Federal Arbitration Court of the Volga-Vyatka District dated December 19, 2007 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 23.09.2017).

97Federal Law dated November 25, 2009 No 281-ФЗ “On introduction of amendments in parts one and two of the Tax Code of the Russian Federation and individual legislative acts of the Russian Federation” (adopted by the State Duma of the RF on 13.11.2009) // Collection of Legislative Acts of the Russian Federation – 30.11.2009. - No 48. – art. 5731.

98Directive of the Bank of Russia dated February 16, 2015 No 3565-У “On the types of derivative financial instruments” (Registered in the Ministry of Justice of Russia 27.03.2015 No 36575) // Bulletin of the Bank of Russia. No 28, 31.03.2015.

99Federal Law dated April 22, 1996 No 39-ФЗ “On the securities market” Collection of Legislative Acts of the

Russian Federation No 17, 22.04.1996, art. 1918.

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registered security. The decision on placement of the issuer's options and their placement is made in accordance with the rules of placement of securities convertible into shares, established by federal acts. At the same time, the price for the placement of shares in compliance with the requirements for the issuer's options is determined in accordance with the price determined in such an option.

It is difficult to agree with V.V. Vitryansky's opinion that the issuer's option, which is a non-documentary emissive registered security, has nothing in common with a special contractual arrangement – an agreement on granting an option to conclude a contract under Art. 429.2 Civil Code of the Russian Federation100.

In Art. 142 of the Civil Code of the Russian Federation, a security paper is defined as a document in accordance with the requirements established by law and certifying obligations and other rights, the exercise or transfer of which is possible only upon presentation of such documents (documentary securities). Thus, a security is a way of fixing the rights and obligations of the parties – the issuer and the holder of the option. The qualifying signs of the relations of the parties of the option and their essence are determined not by the form of the deal, but by the legal object – by the behaviour of the obligated person, and by the economic goal that the parties try to achieve, through the relations that have arisen between them.

The option form (bilateral agreement or registered security) cannot influence the scope and content of the relations of the parties to the deal. V.V. Vitryansky recognizes the recoverability of the options holder's rights101, but for some reason refuses to recognize the issuer's stock option as an agreement to grant an option to conclude an agreement.

At the same time, the scope of the rights and obligations of the parties within the issuer's option fully corresponds to the rights and obligations of the parties under the option agreement. The issuer grants the holder of the option the

100Vitryansky V.V. Reform of the Russian civil legislation. Intermediate results. – Moscow: Statut, 2016. P. 181.

[Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017).

101Vitryansky V.V. Reform of the Russian civil legislation. Intermediate results. – Moscow: Statut, 2016. P. 180.

[Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017).

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The settlement option is by no means an option contractual structure, the legal definitions of which are set forth in Art. Art. 429.2 and 429.3 of the Civil Code of the Russian Federation. It is a purely financial instrument based on the risk nature of the deal. In fact, such a financial instrument does not differ from games and wagers. The settlement option does not create any commodity relations, except for the payment in favour of one of the parties of remuneration in connection with a change in the value of the underlying asset. Legal protection of such a financial instrument was received only in connection with the forced change by the legislator art. 1062 Civil Code in accordance with the Federal Act "On Amendments to Art. 1062 Parts of the Second Civil Code of the Russian Federation "of January 26, 2007 No. 5-FZ and the Federal Act" On Amending Certain Legislative Acts of the Russian Federation "dated December 29, 2014 No. 460-FZ.

2.An option contract is a contract that provides for one of the following

duties:

-the obligation of the party to the contract, on the conditions determined upon its conclusion, in the case of a request by the other party to buy or sell securities, currency or commodities that are basic assets, including by concluding by the party (s) and / or person (s), in the interests of which an option agreement was concluded, a contract for the purchase and sale of foreign currency or a supply contract;

-the obligation of the party to the contract in the case of a claim by the other party to conclude a contract that is a derivative financial instrument and constitutes a basic asset.

These types of option contracts are recognized as delivery contracts.

We should agree with the opinion of V.V. Vitryansky that the supply option agreement in principle falls under the contractual arrangement of an agreement on the granting of an option to conclude a contract regulated by Art. 429.2 of the Civil Code of the Russian Federation, and its specific features – the conclusion of the contract at the request of the party and only the contract, which is a derivative