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for those relations that arise in the framework of contracts whose types are named in part two of the Civil Code of the Russian Federation, and the creation and transfer of one of the parties of the subjective the right to demand the performance of predefined actions. The scope of the actions is determined precisely by the subject of the contract that mediates the option contractual structure, but the primary objective for the parties to the option is not the fact of the performance of the actions, that is, the fulfilment of the main contractual obligation, namely the paid acquisition of the right to demand such performance depending on the subjective interests of one of the parties. It is this factor that should be classified when referring the contract concluded between business entities to the contractual institute of the option.

Regarding the definition of the place of regulatory norms of law in the Civil Code of the Russian Federation, the legislator quite rightfully fixed the legal definitions of the option for concluding a contract and an option agreement in Chapter 27 of the RF Civil Code "Concept and conditions of the agreement". Any contractual structure, including the option one, is a set of contractual conditions predetermined by law that mediates another contract and transforms the subject of such an agreement into a part of the common subject of the contractual structure. At the same time, considering the option as a whole as an element of the obligation, we believe that its legal definition should be placed in chapter twenty-one of the Civil Code of the Russian Federation "The concept of obligation". An option element creates a new type of obligation that is not currently named in the Civil Code of the Russian Federation and differs from other named types of obligations in that its execution and termination are wholly subject to the will of one of the parties and its economic interests.

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2.3 The ratio of the option to conclude a contract and an option agreement,

with other contracts, other contractual constructions and other types of

obligations.

In an effort to fully reflect the pursued economic goals and ensure the protection of their economic interests, business entities are not limited to using strictly those contractual forms that the legislator proposes.

M.I. Braginsky and V.V. Vitryansky point out that the main purpose of the contract is to regulate within the law the behaviour of people by indicating the limits of their possible and proper behaviour, as well as the consequences of violation of the relevant requirements79.

A number of contracts that are used in entrepreneurial activities are similar to each other and correlate with each other on certain elements. This ratio is determined by the ratio of their items, as well as the goals pursued by the parties when concluding a particular civil law contract.

As with other contracts, the unified goal of creating and granting to one of the parties an unconditional right to require a contractual obligation in advance is combined and option contractual arrangements. Despite the fact that the goals of some contractual structures coincide, the set of rights and obligations of the parties to such contracts varies significantly, which in turn distinguishes the contractual structures from each other.

Examining the option contractual structures, it is necessary to pay attention to the ratio of contracts attributed to option contractual structures with other contracts, contractual structures and other types of obligations as a whole.

The option to conclude a contract and an option agreement do not fall under the category of stand-alone contracts, named in part two of the Civil Code of the Russian Federation. They are of an organizational nature, the same as the nature of the subscription contract, preliminary, framework, public. However, the legislator

79 Braginsky M.I., Vitryansky V.V. Contract law: General provisions. – Moscow: “Statut”, 1998. P. 13.

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calls these forms contracts. In order to prevent the confusion of concepts, legal forms are proposed, which the legislator named as an option contract and option for the conclusion of a contract to be called option contractual structures80, in contrast to those legal forms that are independent contracts under the second chapter of the Civil Code of the Russian Federation.

At first glance, by its legal content, the option contractual arrangements, both the option agreement and the option agreement, are similar to the preliminary contract. These two contractual arrangements combine preliminary determination of the conditions for the performance of the obligation, the existence of a period during which the obligation can be discharged. Before the introduction of a legal definition of an option agreement at the legislative level, such an agreement was attempted to be classified as a preliminary contract. In his work, E.V. Ivanova notes the main feature of option structures – the one-sidedness of the preliminary contract, that is, the pure presence of law without corresponding responsibilities to him81.

It seems that this approach is quite vulnerable, because It is impossible to identify option contractual structures with a preliminary contract in connection with their complete incompatibility.

The preliminary agreement is characterized by the equality of the powers of the participants. Option contractual arrangements envisage from the legal point of view the subordination of the obligated party to the will of the obliging party, which

80The legal definition of the contractual structure in the Civil Code of the Russian Federation is lacking. V.V. Vitryansky notes that the contractual structures unite the fact that they are subject to application (including through their use by the parties to the contract when formalizing their contractual relations) to virtually any type of contractual obligations that have the necessary set of characteristics, harked for each special contractual structure (Vitryansky V.V. Reform of the Russian civil legislation. Intermediate results. – Moscow: Statut, 2016. P. 29. [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017).

The term "contractual structure" refers to legally defined contractual conditions that form a single type of relationship between parties that have a set of common for this type of contractual relationship characteristics and general rules of legal regulation. Any contractual structure has a set of individual characteristics inherent only to it. For the contractual structure of an option to enter into a contract, a combination of individual characteristics is the subjective right to require the conclusion of a contract; the period during which this right can be realized; pays for the right to claim a contract. For the contractual structure of the option contract, the aggregate of individual characteristics is the existence of the subjective right to fulfil the obligation predetermined between the parties, the period during which the right to enforce the contract can be exercised, as well as the compensation for the acquisition of such a claim right.

81Ivanova E.V. Financial derivative instruments. – Moscow: “Os-89”, 2005. P. 142.

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in turn is free to choose the moment of time for presenting the demand for performance. Payment of option compensation only ensures the balance of economic interests of both parties of the option contractual structure but does not create equality of their legal status in the performance of the contract mediated by the option contractual structure.

Unlike the preliminary contract, which, by virtue of Art. 429 of the Civil Code provides for the performance of the main obligation unconditionally within the period specified in the contract, the option contractual arrangements are not limited to the unconditional fulfilment of the main obligation. The very fact of the performance of the main obligation is made dependent on the statement of the obliging party about the demand for such performance, which is impossible to implement under the preliminary contract82.

At its core, unlike the preliminary contract, option contractual arrangements provide for reimbursement, that is, a fee (option remuneration) for the acquisition of the right to demand the performance of the primary obligation.

The subject of the preliminary contract is the commission by both parties in the future of actions aimed at the emergence of rights and obligations arising from the basic contract concluded by the parties. The preliminary agreement cannot give rise to any other obligations and rights for the parties, except for the rights and obligations to conclude a basic contract.

The subject of option contractual structures, in contrast to the preliminary contract, is the set of the granted right of demand for performance and the conditions for the performance of certain actions (delivery of goods, performance of work, provision of services, conclusion of the main contract). The option contractual structures in their execution, in particular, may already create an

82 For instance, when concluding a preliminary agreement, the parties do not doubt that the main contract will be concluded by them within the term specified in the preliminary contract. Its conclusions can be claimed by both parties simultaneously, and independently by either side. While concluding the same contract, mediated by an optional contractual arrangement, the parties are not sure that the main obligation (conclusion of the main contract, delivery of goods or performance of work, etc.) will be executed, since its performance depends entirely on the will of one of the parties.

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obligation for the obliging party to pay an option fee in favour of the obligated party.

Law enforcement practice also delimits option contractual structures from a preliminary contract83.

The option agreement, as well as the option contract, aims to establish obligations for a certain period of time and fulfil the established obligations solely if one of the parties has the will of the parties.

However, the items of these contractual structures differ significantly.

Thus, the subject of an agreement on granting an option to conclude a contract is the obligation of the parties to conclude a basic contract, on the terms set out in the agreement. The subject of the option contract is the condition on the time during which the obliging party may be required to comply with the obligations assumed by the other party.

Presenting a practical commentary on the provisions of the Civil Code of the Russian Federation on the option contract, A.G. Karapetov in his article notes "the option agreement is not an independent contract type. This is any contract (purchase and sale, gift exchange, etc.) in which the fulfilment of the basic obligations of both parties is put in a state of "on demand" (clause 2 of Article 314 of the Civil Code of the Russian Federation). At the time of demand, there is no new contract, and ripens the basis for the fulfilment of those basic obligations that are included in the subject of the option contract"84. The superficiality of this

83Decree of the Second Arbitration Court of Appeal dated March 10, 2016 No 02АП0893/2013 on case No А31-7898/2014[Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017); Decree of the Eleventh Arbitration Court of Appeal dated 25.10.2016 No 11АП-13457/2016 on case No А65-4856/2016 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 25.07.2017); Decree of the Second Arbitration Court of Appeal dated March 10, 2016 No 02АП0893/2013 on case No А31-7898/2014[Electronic resource]: Access from the legal reference system “Consultant Plus”

(access date: 25.07.2017).

84Karapetov 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). – 2017. P. 68.

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conclusion lies in the difference between the corresponding rights and obligations established in the option agreement and other contracts.

In other contracts (purchase and sale, supply, agency service, contract), the obligations of the party to fulfil the obligations assumed in the prescribed period correspond to the counterparty's obligation of the other party to accept the stipulated performance and pay a fixed price for it.

In the option contract, the obligation to fulfil the obligations assumed is onesided. It does not correspond to the obligations of the other party to assume these obligations. Even the duty of execution at the time of the conclusion of the main contract does not arise. Such a duty will arise from the side of the option contract only if the other party claims the performance85.

In the option agreement, unlike other contracts, a counterclaim to the obligation to commit acts will be not the obligation to accept execution, but the right to demand this performance.

V.V. Vitryansky also denies the qualification of the option contract, as an independent contractual structure86.

With this opinion it is rather difficult to agree. The existence of an independent, compensated mechanism of the deferred validity of the performance of the obligation, conditioned by the requirement of one of the parties, that is, the set of individual characteristics inherent only in this contractual structure, makes the option contract an independent contractual structure that is different from other purchase and sale contracts concluded under a suspensive condition. The purpose of the option contract is to create a relationship of the parties in which one of the

85For instance, between the two business entities a contract of supply of ten thousand cubic meters of an edging board has been concluded, with an option for an additional supply of two thousand cubic meters of an edging board. Until the buyer is required to supply an additional two thousand cubic meters of board edging, the supplier is required to ship only ten thousand cubic meters of board edging, but no more. From the moment of the buyer's application of the option demand for the supply of an additional two thousand cubic meters of boards of edging from the supplier, it is incumbent upon them to deliver not ten thousand but twelve thousand cubic meters of edged board. At the same time, the buyer also has a duty to accept and pay additional two thousand cubic meters of edged boards supplied by the supplier.

86Vitryansky V.V. Reform of the Russian civil legislation. Intermediate results. – Moscow: Statut, 2016. P. 29.

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

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parties could acquire the right to demand fulfilment of a pre-determined obligation that could be realized by the interested party on the basis of its own economic interests.

The option contract contains a dual subject. The subject of an option contract is not only the delivery of goods, but also a contractual condition that allows to form the right to demand performance at the discretion of the obliging party. Other contractual forms of such a mechanism do not exist.

A significant difference between the option contract and the option agreement is that the option contract is an independent finished construction. Even if it is included in another contract, the construction of the option agreement does not change its essential conditions, but only determines the occurrence of the right of demand from the obliging party for performance within a certain period.

At the same time, the mechanism for exercising the right of claim in the options contract is more simplified, in comparison with the option agreement. It is sufficient for the binding party to declare a claim to the obligated party by any means provided for in the option agreement. At the same time, there is no need to conclude any additional agreements or agreements between the parties to the option agreement.

Concluding the option agreement, its parties pursued their goal not to form an abstract property right of the demand for performance, but the creation of such relations, when the transfer under the option agreement of the property is made by the obligated party at the request of the obliging party and is conditioned by the economic interests of only the obliging party. At the time of the conclusion of the option agreement, there is no obligation to transfer property, as noted earlier, there is only such a duty. Such an obligation arises only when the claim is made by the obliging party.

The option agreement differs from the option agreement, including the fact that when the obliging party sells its right to demand execution, the parties are guided by a single agreed-upon expression of will expressed in the option

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agreement, and not by the aggregate of the will expressed in the option agreement and sent for an execution by the offer.

The option contract acts as a stand-alone contractual structure, including because it has an independent subject. The independence of the subject of the option contract is expressed in the fact that the obliging party acquires the urgent right to demand fulfilment of the obligation.

The foregoing confirms that by mediating any named contract, the option contractual structure radically changes the nature of the contract and creates a new independent contract, the economic goals of the parties of which are directed to a greater extent not to purchase commodity values, but to obtain the possibility of such acquisition. Terms on the acquisition of commodity values are certainly one of the essential conditions in business, but not they, namely, the receipt and granting of the right of demand determine the mutual goal of business entities when concluding an option agreement.

Deferred fulfilment of the obligation, similar to the use of option structures, also provides a framework agreement.

Art. 429.1 The Civil Code of the Russian Federation defines a framework agreement as a contract with open conditions. The framework that recognizes the general terms and conditions of the obligatory relationships of the parties that can be specified and clarified by the parties by concluding separate contracts on the basis of a framework agreement, filing of applications by one of the parties or otherwise on the basis of or in execution of the framework contract is recognized as a framework agreement.

The difference between option contractual structures and the framework contract is the inconsistency of all of its conditions at the time of the conclusion. The framework agreement provides for the establishment of only the basic conditions essential for the parties, other conditions for the performance of the obligation may be either agreed between the parties by concluding separate agreements or elected by one of the parties by sending an application.

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The option agreement and the agreement on the granting of an option to conclude a contract are similar in their effect to a group of deals concluded under a suspensive condition87.

The main difference between option contractual structures and other deals made under suspensive condition is that unlike classical deals made under suspensive condition, such a suspensive condition applied in option contractual arrangements does not activate the deal as a whole, but only gives the character obligatory conditions of its execution. Execution of the deal within the framework of the option contractual structure is subject to the subjective will of the binding party, whereas the deal made under the suspensive condition does not depend on the will of one of the parties but is entirely subordinated to one fact – the occurrence of a certain circumstance.

Thus, the option contractual structure is subject to the subjective will of the party, and the deal under the suspensive condition is subject to an objective circumstance lying outside the control of the parties.

The widest interest in entrepreneurial activity is the possibility of using option contractual structures as part of other contracts.

The implemented norms of the option contract are auxiliary and determine the legal relationships of the parties for future periods after or during the performance of the main obligation, they do not change the subject of the contract, but at the same time create a new element of the contractual obligation – the right to claim additional performance88.

87According to Article 157 of the Civil Code of the Russian Federation, a deal is deemed to be committed under a suspensive condition if the parties have established the occurrence of rights and obligations under it, depending on the circumstances for which it is not known whether it will come or not.

Judicial law enforcement practice allows the probability that a suspensive condition may be a circumstance that depends on the will of one of the parties to such a deal.

(Decree of the Plenum of the Supreme Court of the Russian Federation dated July 12, 2012 No 42 [Electronic resource] Access from the legal reference system “Consultant Plus” (access date: 25.07.2017).

88For instance, if in the contract to supply the option agreement, not all the volume of the supplied products is subordinated, but only an additional part of the output volume.

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The provisions of option contractual arrangements, implemented in another civil law contract, perform a function similar to that performed by additional agreements that modify the terms of the contract.

The main distinctive feature of option contractual structures from supplementary agreements to contracts is the lack of mutual will to change the terms of the contract. Option contractual arrangements provide for the unilateral will of the party to the contract, against which only the expectation of the obligated party is put.

Unlike additional agreements to contracts changing the rights and obligations of the parties, and, accordingly, changing the initially agreed will of the parties to the deal, option contractual arrangements are a mechanism for implementing the agreement reached earlier between the parties.

The provisions of option contractual structures can change not only the quantity of the delivered goods, the volume of work performed, or services provided, but also the subject of the contract itself, the Lawmaker does not explicitly prohibit the conclusion of an option agreement creating an alternative contract subject. At the same time, it is absolutely not required that the alternative subject of the contract be interconnected with the original subject.

Thus, on the basis of the option contractual structure, not only the right of execution requirement, but also the right to demand change in the subject of the contract may be granted. Such use makes it possible to unify in a single deal the mutual will of the parties to conclude simultaneously several different contracts, the subjects of which are united by a single economic goal.

Objectives that are similar to the objectives of option contractual structures are possessed by a contract with execution on demand. In business, he is referred to as a subscription agreement.

The difference is that the subscriber has the right to independently determine the amount of performance. Option contractual arrangements contain a deliberately fixed amount of the obligation that is subject to execution on demand.