orlov_g_n_disser

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Article 180 of the Civil Code provides that the invalidity of a deal does not entail the invalidity of its other parts, if it can be assumed that the deal would have been completed without including an invalid part thereof.

Therefore, when considering the invalidity of a part of the option contractual arrangement concluded in the form of a contract, it is necessary to establish the following circumstances:

1.Does the unified economic goal of the parties to such a contract actually obtain the result of actions performed by the obligated party without any conditions.

2.Does the property right retain the claim of the binding party with its subject matter if the part of the contract is invalid.

3.The extent to which the condition deemed invalid was essential for the

parties.

Let us consider the case of invalidity of the conditions that determine the actions that the obliging party must perform on demand. If such conditions are recognized as invalid, the very subject of the main obligation is lost. That is, the subject matter of the property right of a claim ceases to be legitimate. Absence of the subject of the right of claim, that is, the absence of that which the party may demand terminates the property right of claim itself.

Thus, in the event that the conditions determining the subject matter of the underlying obligation are invalid, the option contractual structure becomes void as a whole.

If, however, the terms of the option element are recognized as invalid, the contract will still contain the subject of the actions or the terms of the main contract.

There is a transformation of the option contractual structure into another contract. The option contract is transformed into a supply contract, the provision of services or a contract. The agreement on the granting of an option to conclude a contract, with the invalidity of an option structure, will only be a preliminary contract.

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Concluding the contract with the use of an option structure, the obliging party assumed the right to choose whether to accept the performance or not. When the option contractual structure is transformed into another contract, this right is replaced by the obliging party with the obligation to accept the performance.

This means compelling the obliging party to change its will and to waive the right to decide the fate of the obligations of the obligated party on its own.

A change in the will of one of the parties in a compulsory manner demonstrates the impossibility of preserving the option contractual structure in the form of a contract of a different kind, even though the object of execution remained unchanged.

Considering the possibility of maintaining the option contractual structure when one of the contractual terms is invalidated, which does not affect the subject matter of such a contract, one should pay attention to the nature of the invalid contractual condition.

If such a condition does not fall into the category of essential contract terms by virtue of the law and was not declared as an essential one of the parties, the content of the condition did not have a significant influence on the formation of the parties' actual will to enter into contractual relations. Consequently, the invalidity of this condition cannot, as a whole, terminate the scope of rights and obligations of the parties under the contract.

If, on the other hand, the condition of the contract, which was declared invalid, was significant, either by virtue of direct instruction of the law, or in connection with a statement by one of the parties, such condition was one of the parties forming an agreed will for entering into contractual relations. The change in the conditions under which the coordinated will of the parties was formed indirectly affects the reality of the will expressed earlier. Consequently, if one of the essential conditions of the concluded option contractual structure is invalid, such a contractual structure is void in general.

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In business, all of the above means that the use of option contractual structures has a number of certain inconveniences.

First of all, the mechanism of real fulfilment of obligations within the framework of the option contractual structure can be provided only by a measure of property liability, the size of which does not allow the guilty party to evade fulfilment of obligations assumed. In practice, when negotiating a contract, it is difficult to establish such an effective security mechanism due to its significant size.

Also, the invalidity of any element of the option contractual structure entails the invalidity of this contractual structure as a whole, and this condition can be excluded only by transforming the option contractual structure into another contract.

Summing up the consideration of the responsibility of the parties of option contractual structures for improper performance of contractual obligations, it can be concluded that such responsibility is subject to the general principles of civil liability – the principle of legality, full reparation and liability for fault. Types of property liability for improper performance of contractual obligations under the option contractual structure are: compulsion to perform obligations in kind, compensation for damages caused and foreclosure. The law does not provide forfeit for breach of obligations under the option contractual structure, such a penalty may be provided for under the terms of the contract solely upon the application of one of the parties, subject to the consent of the other party. It is impossible to select any universal way of compensating for harm caused to the injured party of the option contractual structure as a result of improper performance of the obligation. The type of property liability to the guilty party is to be selected based on the specific circumstances of the violation and the economic interest of the injured party. To liability for violation of the obligation within the framework of the option contractual structure, the guilty party can be brought in exclusively with the validity of the option contractual structure, at the same time any condition recognized as invalid entails the invalidity of the option contractual structure as a whole.

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CONCLUSION

The research carried out on the theme of the thesis work, which touches on the key provisions of the legal nature and the essence of the legal regulation of option contractual structures, which have received their legal definitions in the Civil Code of the Russian Federation in the form of an option to conclude a contract and an option agreement, allow the following conclusions.

First, business entities have now received a legal mechanism allowing both to stabilize and streamline the range of contractual relations, as well as to reduce the risks of incurring costs of acquiring inventories of raw materials and materials, as well as additional works and services.

Secondly, the presence of legal definitions of option contractual structures currently transfers option agreements from the category of unnamed contracts to the category of contracts subject to direct regulation of the Civil Code of the Russian Federation, which in turn will also streamline law enforcement practice and create a stable system for resolving disputes arising from option contractual structures.

Thirdly, in its legal nature and the option to grant the right to conclude a contract, and the option agreement are independent completed contractual structures that have a separate subject – the right of one of the parties to demand the performance of actions specified in the contract.

Fourth, there is a significant problem of legal regulation of option contractual structures. Introducing legal definitions of completed options in the Civil Code of the Russian Federation, the legislator did not disclose the very concept of the option and did not give its legal definition. The further discussion of legal definitions of option structures and the introduction of proposals for their modification is a struggle with negative consequences but does not eliminate the very reason for the legal uncertainty of the application of options – the legal definition of the option as a whole. The option is proposed to be defined as a

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contractual condition that forms the basic element of the obligation, which in turn contains the aggregate relationship of the rights and obligations of its parties.

Fifthly, the proposed definition of an option explains, in turn, the presence in any option contractual structure of the duality of its subject, united by a single economic goal.

The legal definition of the option as a whole also allows to determine the moment when the parties fulfil their obligations under the option contractual arrangements and the emergence of new relations between them in the framework of performance of the obligation stipulated in the option contractual arrangements.

Prior to the introduction of a legal definition of the option as a whole, business entities are limited only by the use of the existing contractual structures, which are mentioned in the Civil Code of the Russian Federation.

Sixth, in spite of its completeness, as well as the existence of a separate subject of relations within the framework of the contract, option contractual structures can be included in the terms of other contracts as additional conditions that allow changing a predetermined scope of performance without changing the main subject of the contract and arising in its framework of relations of the parties.

Limited legal regulation that discloses only items of option contractual arrangements does not allow full implementation of contracts in which option elements are used, without establishing a number of other conditions that are not listed in the rules of legal regulation as essential but objectively necessary for the implementation of option agreements.

Parties of option agreements at the stage of contractual negotiations are subject to independently form an additional list of conditions that are objectively necessary for the implementation of the option agreement and their own unilateral wills to attach to them the nature of significant ones.

Seventh, the possibility of gratuitously granting a business entity the property right of a claim, which may later become an independent object of a civil law deal for the purpose of obtaining property benefits, is questioned. It seems that

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the gratuitous transfer of any right still contradicts the very principle and the main goal of entrepreneurial activity – individual initiative activities performed in their own interests and at their own risk for profit. We believe that the principle of gratuitous contractual options in the field of entrepreneurial activity is subject to exclusion in connection with the possible abuse of this principle with a view to accomplishing a number of feigned deals that actually cover the gratuitous transfer of funds.

Eighth, one should expect that law enforcement practice will show the inconsistency of the mechanism for concluding the main contract by accepting an irrevocable offer, sent under the agreement on granting an option to conclude a contract. Such a complex construction should be replaced by another simpler way of concluding a basic contract, for example, by sending the relevant requirement to conclude a contract regardless of the direction of the offer by the obliging party.

Ninthly, to regulate relations arising from the conclusion, execution and termination of contracts that use option structures, it is not necessary to adopt a separate legislative act, including in certain areas of business. Excessive legal regulation would level out all the flexibility of option structures and reduce the effectiveness of their use in practical business activities.

Subject regulation of contracts with the use of option structures can be carried out by creating a uniform law enforcement practice.

For example, in the system of the current legislation of the Russian Federation there are no acts regulating the relations of the parties within the framework of the preliminary contract or its separate types, however, a fairly stable law enforcement practice has been developed for resolving disputes related to the parties' implementation of their preliminary rights and obligations.

The same practical explanation with regard to option contractual structures allowed in court to develop a uniform predictable law enforcement practice for resolving disputes arising from preliminary contracts, which could not positively affect the stability of civil turnover.

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In the tenth, creating the most effective contractual options, the legislator, when establishing their legal definition, emphasized the principle of freedom of contract, making maximum use of the normality that determines the essence of the option contract.

In fact, at the discretion of the parties to the option contractual structures, all of its essential conditions are left, including the subject of the contract, its commercial nature, timing, economic purpose, subjects and much more.

One can express confidence that with the introduction into the Civil Code of the Russian Federation of a legal definition of the option as a whole, business entities will expand the practical application of option contractual structures.

Obviously, the study of issues related to the legal regulation of option contractual structures, in isolation from the complex practice of their application, cannot constitute any value for the further improvement and development of civil law relations. This is the reason for the further necessity of studying the institute of option contractual structures and its legal regulation.

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BIBLIOGRAPHY

Regulatory acts and other official documents

1.Legal Acts and other regulatory acts of the Russian Federation

1.1.Constitution of the Russian Federation (as revised of 21.07.2014) // Collection of Legislative Acts of the Russian Federation. – 2014. – No 30 (Part 1). –

art. 4202.

1.2.Civil Code of the RSFSR (approved by the Supreme Council of the RSFSR 11.06.1964) (as revised of 26.11.2001) // Collection of Legislative Acts of the Russian Federation. – 2001. –No 49. – art. 4553. The document became void from January 1, 2008 in connection with adoption of the Federal Law dated 18.12.2006 No 231-ФЗ.

1.3.Civil Code of the Russian Federation (part one) dated 30.11.1994 No 51-ФЗ

(as revised of 29.12.2017) // Collection of Legislative Acts of the Russian Federation. – 2018. – No 1 (Part 1). – art. 43.

1.4.Civil Code of the Russian Federation (part two ) dated 26.01.2006 No 14-

ФЗ (as revised of 05.12.2017) // Collection of Legislative Acts of the Russian

Federation. – 2017. – No 50 (Part 3). – art. 7550.

1.5. Federal Law dated December 30, 2008 No 312-ФЗ (as revised of

05.05.2014) “On introduction of amendments in part one of the Civil Code of the Russian Federation and individual acts of legislation of the Russian Federation” //

Collection of Legislative Acts of the Russian Federation. – 2014. – No 19. – art. 2304. 1.6. Federal Law dated January 26, 2007 No 5-ФЗ “On introduction of

amendments in article 1062 of part two of the Civil Code of the Russian Federation” //

Collection of Legislative Acts of the Russian Federation. – 2007. – No 5. – art. 558. 1.7. Federal 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. – 2015. – No 10. – art. 1412.

409

1.8. Federal Law dated December 28, 2002 No 185-ФЗ (as revised of

29.06.2015, with amendments dated 03.07.2016) “On introduction of amendments and addenda in Federal Law “On the securities market” and on introduction of an addendum in Federal Law “On non-profit organizations” // Collection of Legislative

Acts of the Russian Federation. – 2015. – No 27. – art. 4001.

1.9. Federal Law dated April 22, 1996 No 39-ФЗ (as revised of 31.12.2017) “On the securities market” (with amendments and addenda, effective from 01.02.2018) //

Collection of Legislative Acts of the Russian Federation. – 2018. – No 1 (Part 1). – art. 70.

1.10.Federal Law dated November 25, 2009 No 281-ФЗ (as revised of 03.07.2016) “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” //

Collection of Legislative Acts of the Russian Federation. – 2016. – No 27 (Part 1). – art. 4225.

1.11.Law of the Russian Federation dated February 20, 1992 No 2383-1 (as revised of 23.07.2013) “On commodity markets and exchange trade” //Collection of

Legislative Acts of the Russian Federation. – 2013. – No 30 (Part 1). – art. 4082. The document became void from January 1, 2014 in connection with adoption of the Federal Law dated 21.11.2011 No 327-ФЗ.

1.12.Instruction dated May 22, 1991 No 41 “On establishment of open foreign exchange position limits and control over observation by the authorized banks of the Russian Federation” (approved by the order of the Bank of Russia dated September 22, 1996 No 02-171) // Bulletin of the Bank of Russia. – 1996. – No 24.

1.13.Decree of the Supreme Council of the Russian Federation dated June 11, 1992 No 2980-I “On introduction into effect of the State program of privatization of state and municipal enterprises in the Russian Federation for 1992” // Bulletin of the Congress of Peoples’ Deputies of the Russian Federation and Supreme Council of the

Russian Federation. – 1992. – No 28 art. 1617.

410

1.14. Directive 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. – 2015. – No 28.

1.15.Decree of the Government of the Russian Federation dated March 19,

1993 No 271 “On establishment of open-type joint-stock company “Oil Company “Surgutneftegaz” // Collection of acts of the President and the Government of the

Russian Federation. – 1993. – No 15. – art. 1275.

2. Acts of the supreme bodies of judicial branch of power of the Russian Federation having normative content

2.1 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” //

Bulletin of the Supreme Court of the Russian Federation. – 2017. – No 1.

2.2 Decree 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. 2.3 Decree of the Plenum of the Supreme Court of the Russian Federation dated

June 28, 2012 No 17 «On consideration of the civil cases on disputes on consumer rights protection by the courts” // Bulletin of the Supreme Court of the Russian

Federation. – 2012. – No 9.

2.4 Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 No 54 “On some issues of settlement of disputes, arising out of contracts concerning real estate, which will be created or purchased in the future” // Bulletin of the Supreme Arbitration Court of the Russian Federation. – 2011.

– No 9.