orlov_g_n_disser

351

The Civil Code of the Russian Federation provides for a number of legal mechanisms for concluding civil-law contracts, which can be selected by contractors depending on their objectives and specific situation.

First of all, as a mechanism for concluding a contract, an acceptance of a directed offer is envisaged. The offer contains all the essential terms of the contract. Thus, there is a determination of the unilateral will of the offeror regarding its intention to conclude a contract and accordingly enter into a deal. The conclusion of any contract in this way is made by agreeing a directed offer – its acceptance. Art. 438 of the Civil Code provides for unconditional acceptance. If the acceptance, sent as an agreement and in confirmation of acceptance of an offer, contains any reservations or from its content it is impossible to really establish the full and unconditional will of the acceptor to accept the conditions of the offer, this acceptance is not considered such and is considered an offer on other terms.

From a practical point of view, this requirement of the law excludes any disputes about the terms of fulfilment of obligations within the framework of the concluded contract and the determination of the scope of the rights of each party. But the principle of unconditional and completeness of acceptance is of profound theoretical importance. This principle allows us to determine the unity of the will of the parties to the future agreement, the coincidence of their legal and economic goals and the full coordination of all the essential conditions of the contract.

The option agreement explicitly provides for the ultimate goal of its implementation the conclusion between the parties to the main contract, the terms of which are determined by the parties in advance, upon concluding an agreement.

Art. 429.2 of the Civil Code of the Russian Federation provides as a conclusion of the main contract in the framework of an agreement on the granting of an option to enter into a contract, the classical variant of acceptance of an irrevocable offer, sent by the obligated party within the framework of the agreement. In this art. 429.2 of the Civil Code explicitly provides that, unlike the classical option of unconditional acceptance of a direct offer and the indication of

353

The legal nature of the offer, stated in Art. 435 of the Civil Code of the Russian Federation, there is no option agreement in the option agreement. The formation of the agreed will of the parties regarding the conclusion of the main contract, as well as the establishment of all its essential conditions, has already been accomplished by concluding an agreement on granting an option to conclude a contract.

The legal mechanism for concluding a contract, by accepting a direct offer, is applicable in the implementation of the principles of freedom of contract and the availability of independent subjective will by the parties to enter into contractual legal relations. Acceptance of a previously submitted offer is a way of implementing the principle of autonomy of the will of the parties when choosing both a contractual partner under the contract and establishing contractual terms.

The conclusion of the main contract is mandatory for the obligated party not by virtue of direct indication of the law but based on a voluntary obligation assumed under the agreement on granting the option. At the time of concluding an agreement on granting an option to conclude a contract, the obligated party has already used the principle of freedom of contractual legal relations and exercised its right to choose a counterparty and to establish the terms of the contract by accepting a voluntary obligation to conclude a basic agreement in the future.

In fact, the option agreement is simultaneously an irrevocable offer of the obligated party for the conclusion of the main contract125. For the emergence of new legal relations of the parties, the terms of which are defined as the terms of the main contract, only the unilateral will of the binding party is sufficient.

125 The direction of the offer within the option to conclude a contract is more formal. The need for such an action is caused only by the direct indication of the law (paragraph 1 of Article 429.2 of the Civil Code of the Russian Federation). Novitsky I.B. and Lunts L.A. note that the characteristic features of the offer are the availability of the final terms of the contract and the fact that it is being done with the final intention to conclude a contract. (Novitsky I.B, Lunts L.A., prof. General theory on obligation..Moscow: Gosyurizdat, 1950. P. 154). These characteristics in the option contractual structure in question are inherent in the agreement on granting an option to conclude a contract. It is the agreement itself that reflects the will of the offeror to conclude a contract with a potential acceptor in the future on terms not specified in the offer, but in the agreement itself. This circumstance further confirms that the execution of the agreement on granting the option to conclude a contract is unduly regulated by the legislator.

354

At the conclusion of the main contract, within the framework of the option agreement, there is no equitable expression of the will of the parties. This circumstance further confirms the absence of necessity and expediency in use as an additional legal mechanism in the form of acceptance of a directed offer.

Any civil law contract is a bilateral deal; therefore, it provides for a reciprocal bilateral will. The binding party, unlike the obligated party in the option agreement, since the conclusion of such an agreement, has not lost its autonomy for entering into contractual legal relations.

The obligated party, within the framework of the option agreement, does not have the ability to independently fulfil its obligation to conclude a contract. For his conclusion, the will of the second party is necessary, which will simultaneously be an agreement to accept the fulfilment of such an obligation.

Such an expression of will in the option agreement acts as a requirement to conclude a basic contract. The requirement to conclude a basic contract combines at the same time three legal functions: 1) it is the will of a person to enter into contractual legal relations, 2) represents the realization by the party of the obligation arising from the conclusion of the agreement to fulfil the obligation by the obligated party and 3) is the consent of the obliging party to accept from obligated party performance of an obligation under the agreement.

The Civil Code of the Russian Federation does not impose special requirements on the expression of such a will. The only requirement for such actions is the requirements of unambiguousness and indisputability of interpretation and observance of the expression form of expression of will.

Consequently, the regulation of the will of the obliging party by introducing a mechanism for sending an offer and its acceptance is completely superfluous and has no legal or practical justification.

The additional use of the legal mechanism for concluding a basic contract in the form of an offer and its subsequent acceptance simply complicates the

355

construction of an agreement on granting an option to conclude a contract, which by its legal nature is the same legal mechanism for concluding a deferred arrangement.

From the moment of accepting an offer, the agreement on granting an option to conclude a contract is not transformed into a preliminary contract in which the parties become obligated to conclude a basic contract with respect to each other. This is due to the fact that the terms of the main contract have already been determined in the agreement on granting the option and the acceptance of the directed offer is only a legal fact, from the moment of which the pre-agreed contractual terms are given legal significance.

Unlike the agreement on granting an option to conclude a contract, the option contract is a completed contractual arrangement. Such a contractual arrangement contains all the conditions for the subject matter and the way of performance as the obligation of the party that provided the option, as well as the rights and obligations of the party that has the right to demand performance.

Art. 429.3 Civil Code at first glance does not explicitly provide for the conclusion of any additional contracts on the basis of an option agreement. It implies a complete nature and contains both the subject of an option contract – the emergence of the right to demand performance, and the subject itself of the final performance. But can this contract be considered a prisoner? Indeed, the option agreement has all the signs of imprisonment without exception, since it contains the mutual will of the parties, aimed at establishing mutual rights and obligations.

However, the purpose of this contractual structure is not at all the intention of the parties to create from one of them on a reimbursable basis a new property right to a claim to the other party126.

126 An option contract is always used with a different contractual structure, such as a contract of sale, lease, supply or other contractual arrangements providing for barter transactions or the transfer of property rights. In this regard, the option agreement provides for two of its independent subjects – the main subject of the contract is the performance of actual actions, that is, the delivery of goods, the performance of work or the provision of services, and the additional subject of the contract is the provision by one of the parties of the right to demand the performance of actual actions constituting the main subject of the contract.

356

In the construction of an option contract, a mechanism similar to the acceptance mechanism of an irrevocable offer is used. By a statement of the demand for performance, the obliging party thus accepts the offer of the obligated party to perform the actual actions provided for by the option agreement, thereby expressing the intention not only to accept the performance, but also in turn assumes a counter obligation to pay the performance of the obligated party in accordance with the terms of the option contract.

By direction of the demand for the performance of actual actions, the obliging party also expresses intentions to generate other contractual relations related to the implementation of the main subject of the contract.

The option contract, due to the duality of its subject, at the time of conclusion is not a way to achieve the final agreed upon by the counterparties of the economic goal. Achieving such a goal in the form of performing actual actions is possible only after the will of one of the parties containing the demand for execution and expressing readiness to accept the result of performance from the obligated party.

From the moment of the statement of the requirement by the binding party on the performance by the obliged party of certain actions, the option element of the contract is exhausted, and the option agreement is transformed into another contractual arrangement regulating the relations of the parties already within the framework of the main subject of such an agreement.

Thus, the agreement on granting an option to conclude a contract and an option agreement have one common distinctive feature that is not inherent in other contractual structures – being completed contractual structures, they can generate new relations of the parties in carrying out entrepreneurial activities. For this, the option agreement provides only a mechanism for the additional will of the authorized party, whereas the agreement on granting an option to conclude a contract requires the conclusion of a new independent contract.

357

The contractual structure of the option agreement provides for the possibility to determine the time of the conclusion of the main contract, not only depending on the will of one of the parties, but also with the simultaneous occurrence of a certain circumstance, including one that depends on the will of one of the parties.

Such a condition is a novel of civil law, since the earlier classical construction of the offer, set out in Art. 435, 437 of the Civil Code did not provide for an offer under any conditions. In its classical design, the offer was a complete and unconditional will of the person to enter into a contractual relationship with a statement of all the essential conditions of the alleged contract. The only prerequisite condition up to that time was the right to choose the offeror in the form of a direct offer – an offer without a period for its acceptance or an offer containing a period for acceptance.

The Civil Code of the Russian Federation does not indicate which party has the right to such an additional condition. We believe that this approach is based on the principle of equality of property interests of the parties and good faith behaviours of participants in civil legal relations. It is assumed that the conditions that are the reason for the conclusion of the main contract in the framework of the agreement on granting the option to conclude a contract may arise not only from the obliging party, which in its turn is freer to dispose of the fate of the main contract, but also from the obligated party. In this case, the condition, the onset of which is due to the conclusion of the main contract is legally so significant for the interested party, that without its onset the conclusion of the main contract may lose all expediency.

The requirement to include such a condition can be put forward by both the obliging party and the obliged, as well as both sides together, depending on whose interest the onset of this suspensive condition is.

This condition is also possible in the event that it will depend on the will of one of the parties. This means that the obliging party, in the presence of an option

358

agreement of this kind of reservation, is deprived of the possibility to refer to the presence of the fault of the obligated party in the absence of such a suspensive condition and to demand the conclusion of a basic contract.

The dependence of the condition on the will of one of the parties directly contradicts Art. 157 Civil Code, according to which the suspensive condition is characterized by the uncertainty of the offensive. In this case, the presence of dependence on the will of one of the parties negates the principle of the suspensive condition, and this condition characterizes the conclusion of the main contract as a conditional fulfilment of the obligation, which is regulated by Art. 327.1 Civil Code of the Russian Federation.

This provision clause 1 of Art. 429.2 The Civil Code of the Russian Federation allows the use of an agreement on the granting of an option to conclude a contract to strengthen its own contractual relations with counterparties, not only by the obliging party, but also by the obligated party, which to some extent equalizes their economic interests.

For the obligated party, there is no legal significance for the presence of dependence of the fact of the provided stipulated condition from the will of the obliging party, since the obliging party is already the administrator of the fate of the main contract and has the right to refuse acceptance of the previously submitted offer without explaining any reasons.

Accordingly, consideration should be given to the issue of an option fee in the conclusion of an agreement in which the conclusion of a basic contract is due to the occurrence of a circumstance depending on the will of one of the parties. At first glance, such cases may seem rare, but the specifics of contractual relations in the field of entrepreneurial activity are built on the principle of "as little as possible obligations with the greatest possible benefit." The question of establishing the conditions for the conclusion of a basic contract can be of significant importance to the obligated party.

359

Unlike the option agreement, the contractual structure of the option contract, provides a condition for considering the requirement for performance to be declared. The onset of such a condition nullifies the will of the obliging party and allows the obligated party to execute and receive an appropriate payment from the obliging party127.

The problem, which is essential for entrepreneurial activity as a whole, was touched upon by V.V. Ralko. This problem lies in the possibility of concluding option contractual structures in general with respect to the goods that are not available to the obligated party. In his opinion, based on paragraph 2 of Art. 455 Civil Code, the conclusion of such options is possible128.

With the proposed opinion, you can only partially agree. Indeed, paragraph 2 of Art. 455 of the Civil Code of the Russian Federation grants the parties the right to conclude a contract for the sale of goods, which will be purchased by the seller in the future. This legal norm should be considered in its systemic relationship with Art. 454 Civil Code and art. 209 of the Civil Code of the Russian Federation.

P. 1 of Art. 454 of the Civil Code of the Russian Federation provides that under the contract of sale of goods one party (seller) undertakes to transfer the thing (goods) to the other party (the buyer), and the buyer agrees to accept this product and pay for it a certain amount of money (price). That is, the obligation to purchase and sell requires the seller to dispose of the goods.

P. 1 of Art. 209 of the Civil Code of the Russian Federation determines that the owner owns the right to own, use and dispose of property. Thus, the seller can dispose of the goods belonging to him, only having the right of ownership to him, or property rights, to receive such goods in the future.

127 In business activities, the application of an option agreement with a default condition of performance is extended in the sphere of corporate relations, when, for example, the requirement to sell minority shares in the authorized capital or shares is considered to be declared by the majority shareholder of the company (shareholder) when the profit organization reaches a certain level of profitability.

This option contractual design can also be used in the field of exchange trading, when the participants agreed on the sale or acquisition of the basic underlying asset when it reaches a certain value.

128 Ralko V.V. Option for conclusion of a contract and option contract in the Russian law // Notarius. – 2016. – No 5. P. 38-44. [Electronic resource] Access from the legal reference system “Consultant Plus” (access date:

25.07.2017).

360

P. 2 tbsp. 455 of the Civil Code of the Russian Federation also indicates the purchase of goods in the future, that is, the sale by the seller of some right to accept that commodity, which in turn is the subject of a contract of sale.

Also, the obliged party, concluding the contract of sale of goods using the elements of the option mechanism, must ensure at the time of the conclusion of such a contract either the availability of the goods or the property right to receive it in the future. Other would mean the nullity of the option obligation to transfer the goods on demand, since the right to dispose of such goods from the obligated party is absent.

In entrepreneurial activities, a different approach would mean replacing the commodity market with a market for property obligations that are not secured by a real commodity or the rights to receive it.

However, restriction of initiative in entrepreneurial activity is unacceptable. If business entities are willing to enter into option contracts for goods that are not available at the time of the conclusion of the contract – this is their right and the implementation of the principle of freedom of contract. Observance of public interests can be ensured not by an imperative ban, but by the introduction of a mechanism for compulsory property insurance of the liability of the business entity, which is an obligated party in the option agreement.

In conclusion, it should be noted that the option contractual structures, due to their peculiarities, allow the subjects of entrepreneurial activity to significantly expand the conditions for concluding the main contracts and to detail them based on their own economic and private-law interests.

Option contractual arrangements allow to regulate turnover, however their use requires additional actions from the parties to achieve the set final economic goals.

When considering the specifics of the conclusion of the main contract within the framework of option contractual structures, it is impossible not to touch upon the issue of the non-conclusion of the contracts themselves relating to the