An option to conclude a contract is a new concept introduced into the Civil Code of the Russian Federation by the Law “On the Introduction of ...” dated 08.03.2015 No. 42-FZ. We will tell you more about the legal meaning and content of the option transaction in the proposed article.
Option - concept and scope, an example of options
According to Art. 429.2 of the Civil Code of the Russian Federation, an option recognizes the right of one party to conclude one or more agreements with the other party in the future on the terms and conditions that are previously specified in the option. The seller of the option sends it with the help of an irrevocable offer to a specific buyer or addresses it to an unlimited circle of buyers for a fee or without it (more on the offer and its types can be found in our separate article). Any other non-monetary consideration may also be accepted as payment for the option.
Art. 429.2 of the Civil Code of the Russian Federation provides for the right of the seller to set a time limit for concluding the main contract.
In addition to the term, according to Art. 429.2 of the Civil Code of the Russian Federation, the possibility of concluding the main transaction may be limited (conditioned) by some event or circumstance, depending or independent of the will of the parties (for example, the achievement of a certain value by the underlying asset). In this case, the conclusion of the main transaction is possible only if this requirement is met.
By accepting an option to conclude a contract, the buyer is in more advantageous terms than the seller. The buyer can, at any time convenient for him, make a deal or refuse it altogether. However, the seller is obliged to conclude the main transaction when the buyer sends an acceptance. This inequality in rights is compensated by the payment of an option premium to the seller. According to the rules of Art. 429.2 of the Civil Code of the Russian Federation (unless the parties agree otherwise), the option premium is not taken into account when calculating the main transaction and is irrevocable, that is, not refundable to the buyer, even if the main transaction is not concluded.
Scope of options
Option transactions are widely used in countries Western Europe and the United States over the past two centuries. In Russia, option transactions have become widespread only in the last few years, and therefore their legislative regulation and law enforcement practice for them is only at the stage of formation.
An option transaction allows the buyer of an option to agree in advance on the price and other conditions for the purchase or sale of a particular product and thereby insure himself against a possible increase (decrease) in prices for this product. However, if the market situation becomes more favorable than the terms of the option, the buyer can always refuse such a transaction and purchase the products he needs (sell the existing one) at a more favorable price for himself.
An option with a suspensive condition (otherwise referred to as a barrier option) is also convenient for the parties in that the conclusion of the main transaction can be carried out only upon the occurrence of a predetermined situation and on pre-agreed conditions, which allows the buyer to minimize his risks or insure himself against undesirable consequences.
Due to its specificity, the option is widely used in relation to freely and regularly quoted underlying assets, both in ordinary civil circulation and on the stock exchange. Therefore, options can be concluded both in relation to currency, stocks, commodity and financial assets traded on exchanges, and in relation to ordinary goods and even services: cars, household appliances, real estate, etc.
Options types
In civil circulation, all options are divided into two groups depending on the direction of the main transaction:
- option to purchase (denoted English words ohm Call) gives the right to the buyer of the option to buy the specified goods from the seller;
- a put option (denoted by the English words Put), respectively, entitles the buyer of the option to sell the goods he has.
The subject of an option, in addition to goods, can be a service or work. In such situations, options are usually offered by companies that are executors or contractors in order to attract customers. Accordingly, in such situations, we are talking about options of the Call type, which allow the customer to receive the necessary service or work on predetermined conditions.
Examples of options to enter into a contract
The developer company is going to sell apartments in the house, which will be put into operation in 3 months. Current average price one apartment in such a house is 5 million rubles. Accordingly, the developer offers an unlimited number of persons to acquire the right to purchase an apartment for a given amount within a year after the house is put into operation. The developer estimates the cost of this right at 100 thousand rubles.
AT this example an option to buy is indicated, that is, of the Call type. In the event that the price of the apartment increases by an amount exceeding the option premium, then the transaction will be beneficial for the option holder. If the price of the apartment decreases significantly, then it will be more profitable for the buyer to refuse this option.
Consider the reverse example of a Put option. The real estate company is buying apartments. The price offered by her suits the seller of the apartment, but he plans to find more money within 3 months. profitable option. But since he does not know whether the realtor will purchase his apartment for the named price in 3 months, he is ready to buy from the realtor an option for such a deal on the terms agreed now. The realtor does not object to such a deal, since, according to his information, housing prices may rise, plus he is entitled to an option premium. Accordingly, in this situation, the realtor offers the potential seller an option to sell his apartment at a specified price with an acceptance period of 3 months.
If the seller of the apartment can find a buyer who offers more high price for his apartment, then such a deal will be beneficial for him and he will refuse the option. If not, then the seller will make a deal on the agreed terms, thereby losing the amount of the option premium.
Option to enter into a contract with a suspensive condition - example
Two legal entities agreed to establish a mining company on a parity basis. At the same time, the first founder made a contribution cash necessary for the development of the field, and the second - land plot owned by him, mining technology and other non-monetary assets.
Agreement on joint activities an option is provided that gives the financing organization the right to sell its share of shares to another founder (and, accordingly, the obligation of the latter to redeem them) at a predetermined price, if within 3 years of operation of the newly created company the price of its shares does not amount to, for example, 5000 rubles per piece.
In this case, the condition under which the right to exercise the option arises is the failure of the shares to reach the value determined by the parties within the specified period.
Essential terms of the option to conclude a contract
Since the option is a transaction, in relation to it, in in full the rules of Art. 432 of the Civil Code of the Russian Federation on the need to agree on all essential conditions. Otherwise (in the absence of coordination of all necessary conditions) the option will be considered not concluded, that is, not giving rise to any rights or obligations of the parties.
According to Art. 429.2, 432 of the Civil Code of the Russian Federation in an option, only its subject should be clearly indicated, that is, the right to conclude a transaction. At the same time, according to the requirements of Art. 429.2 of the Civil Code of the Russian Federation in the option must be clearly stated essential conditions the transaction, the right to enter into which is assumed by the option. That is, if the subject of the option is the conclusion of a contract of sale, then in accordance with the requirements of Art. 455 of the Civil Code of the Russian Federation must contain an indication of the quantity and name of the goods. Other terms of the contract of sale (cost, term of the contract, assortment, completeness, etc.) can be specified by the parties at their discretion.
It is important to remember that the right to conclude an option by virtue of Art. 429.2 of the Civil Code of the Russian Federation may be assigned to another person. However, in an option, the parties may establish a prohibition on the assignment of rights under the option. In addition, the assignment of rights under an option is not possible if the execution of the transaction involves the personal participation of the parties.
Transaction term and option price
Within the meaning of Art. 429.2 of the Civil Code of the Russian Federation, a mandatory indication of the duration of the option and its value is not required. Accordingly, these conditions are not essential by virtue of the law. Nevertheless, the practice follows the path of mandatory fixing of agreements on these points in the option.
The term of an option is understood as the period during which the holder of the option can apply to the other party to accept the underlying transaction. Art. 429.2 of the Civil Code of the Russian Federation does not limit the parties in determining such a period. However, if the term is not agreed by the parties, then the duration of the option is limited to one year or another period determined by virtue of business customs. At the same time, the condition on the validity of the option is preserved even if there are suspensive conditions. That is, the option cannot be perpetual.
According to the rules of Art. 429.2 of the Civil Code of the Russian Federation, the option is presumed to be paid. If the seller of the option is not going to charge a fee for the right to conclude a contract with him, then the option must contain an indication of its gratuitousness. Otherwise, if the value is not specified, the rules of Art. 424 of the Civil Code of the Russian Federation, that is, the price of the option will be determined based on the cost that is charged under comparable circumstances in relation to similar transactions.
It is important to remember that free options can also apply between commercial organizations. Restrictions on donations between commercial organizations Art. 575 of the Civil Code of the Russian Federation do not apply in this situation, since the right to conclude an option as such is not a gift.
Option form
According to Art. 429.2 of the Civil Code of the Russian Federation, the option must be drawn up in the form required for the transaction, the rights to which are the subject of the option. Here, however, it is worth noting that we are talking about a simple written form, even if the main transaction is subject to state registration. This position is applied by the courts on the basis of paragraph 14 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation "Obzor ..." dated February 16, 2001 No. 59. The Presidium of the Supreme Arbitration Court of the Russian Federation noted that in this case we are talking about the right to conclude an agreement, and not, for example, about buying the sale of real estate, respectively, the rules on state registration for options should not apply.
Practitioners also need to remember about the possibility of including an option in the text of the main contract, which is also allowed by virtue of the provisions of paragraph 6 of Art. 429.2 of the Civil Code of the Russian Federation.
Option to conclude a contract and option contract
Art. 429.3 of the Civil Code of the Russian Federation also provides for such a legal structure as an option agreement. An option agreement is an ordinary civil law transaction with the only difference that, unlike conventional transactions, one of the parties is not obliged, but has the right to demand from the other party the performance of obligations under such a transaction (payment of funds, transfer of property, or other actions). In this case, if the party has not activated its right of claim within the period stipulated by the contract, then the contract is subject to termination.
P. 1, Art. 429.3 of the Civil Code of the Russian Federation also allows the parties to conclude an option agreement with a suspensive condition. In this case, the contract is considered activated if the condition indicated in it occurs during the term of the contract.
Like an option to conclude a contract, an option contract also involves the payment of a premium to the second party for the opportunity to activate its action or completely refuse to execute it. However, an option agreement may also be free of charge if the parties specifically indicate this condition in the signed document.
That is, comparing the option to conclude a contract and the option contract, we can conclude that the option contract is a symbiosis of the option and the main transaction, drawn up in a single document.
Option to conclude a contract - sample
Option to conclude an office lease agreement No. 1
Start LLC, hereinafter referred to as the Option Buyer, represented by Director Nikolay Maksimovich Petrov, acting on the basis of the Charter, on the one hand, and Kraftfish LLC, hereinafter referred to as the Option Seller, represented by Anna Semyonovna Fedorova, Director, acting on the basis of the Charter, on the other hand, have entered into this option (hereinafter referred to as the Option) as follows.
I. Subject of the contract
1.1. The Option Seller, through an irrevocable offer, gives the Option Buyer the unconditional right to conclude an office lease agreement with an area of 26.5 square meters located at the address: Krasnogorsk, st. Planernaya, d. 1, of. 2, cadastral number 12:25:3256007:005 (hereinafter referred to as the Office Lease Agreement), in accordance with the conditions listed in the Option, and the Option Buyer, in turn, pays for the right granted to him by the Option.
1.2. The essential terms of the Lease Agreement specified in clause 1.1 of the Option are:
1.2.1. The amount of the monthly rent for the Office is 14,550 (fourteen thousand five hundred and fifty) rubles.
1.2.2. The term of the Office Lease Agreement is 3 years, which is calculated from the date of acceptance of the offer contained in the Option.
II. Rights and obligations of the parties
2.1. The Option Buyer acquires the right to conclude an Office Lease Agreement within 3 months by accepting the offer specified in the Option.
2.2. The buyer of the option undertakes to pay its cost within 3 days from the moment of signing the Option, which is 10,000 (ten thousand) rubles.
2.3. The payment specified in clause 2.2 of the Option is not counted towards the account rent under the Office Lease Agreement and is non-refundable if the Office Lease Agreement is not accepted by the Option Buyer during the Option validity period.
2.4. The Option Buyer is not entitled to assign the right to accept the offer specified in the Option to third parties.
III. Other conditions
3.1. The option takes effect from the moment it is signed.
3.2. The option is made in 2 copies, having the same legal force.
IV. Details and signatures
Option buyer: OOO Start, 102302 Krasnogorsk, st. Postal, 18, TIN 1205634546, account at PJSC "Bank Trust" 01234568896806000012, BIC 205636987
General Director ____________________________ Petrov N.M.
02/15/2018 M.P.
Option seller: OOO Kraftfish, 102002 Krasnogorsk, st. Lesnaya, 2, TIN 2356489701, account at PJSC Bank Imperial 021500006800000000036, BIC 026356981
General Director ____________________________ Fedorova A. S.
02/15/2018M. P.
***
Summing up, we note that an option transaction is extremely risky for the option buyer, as it can lead to the loss of the option premium in an unfavorable market situation or significant benefits if the market conditions are in his favor. That is why options are widespread on the stock and commodity exchanges, where such risk is an integral part of the business.
In the case of an option to conclude a contract (Article 429.2 of the Civil Code), the subject of the option is the right to conclude the main contract. Those. An option is a special contract (agreement, as it is called in the text of the article) on the sale (as a rule, although other reasons are possible) of the right to conclude another contract.
In the case of an option agreement (Article 429.3 of the Civil Code), it is any agreement with the condition of postponing execution on it until demand or until certain circumstances occur for a fee (or for other reasons).
Thus, the main difference is that under an option the right to conclude an agreement is acquired, and under an option agreement - the right to demand under the concluded agreement. But in both cases, the benefit (economic object, interest) that the party acquires is the right to wait - the state of certainty of contractual conditions for a certain period and, accordingly, the binding of this certainty to its counterparty, which is in a state of suspension of the offeror or in condition of the party awaiting demand, while the conditionality of the performance of each of the relevant obligations is covered general rule article 327.1 of the Civil Code.
What is the meaning of distinguishing two forms of satisfaction of this interest, which certainly deserves support?
I think the whole point is the turnover of the right to wait.
If the parties initially expect to interact with each other, they do not need an option, they immediately agree on all the conditions and put the execution on hold “on demand”. In this mode, the change of the party to the contract is subject to Article 392.3 of the Civil Code (transfer of the contract).
You can probably turn on this mode not only in relation to the first one in the order of execution, although this is perhaps the most demanded scenario. The contract can be structured, for example, in such a way that the seller transfers the thing under the contract with a currency clause, and then transfers the payment to the standby mode, during which he selects the most favorable rate for payment (compensating this, say, with a discount). If the seller has not decided before the end of the term, then the contract, by direct indication of clause 1 of article 429.3, is terminated, and the parties' settlements are made in the manner established by them or according to the rules of paragraph 2 of clause 4 of article 453 of the Civil Code. However, in my opinion, the rule on the termination of the entire option agreement upon the expiration of the waiting period is not imperative, and the parties have the right to stipulate that only the right of demand is terminated. In the latter case, apparently, the rules of clause 2 of article 314 of the Civil Code are applied - the buyer has the right to transfer payment or require the seller to accept it with attribution to the latter of the risks of delay in execution (article 406 of the Civil Code).
If the party needs freedom to alienate the contractual position it has reserved, and the party that made such a reservation is counting on the same, then an option is issued that can be resold, pledged, etc. without the consent of the issuer (clause 7 of article 429.2 of the Civil Code).
It is likely that these two articles were the result of a compromise between two points of view:
a) conservative - that there is no point in the option construction of "right for right", because the corresponding interest can always be described by the right to a direct material object (goods, works, services); if the two parties know what they want, they can immediately establish an obligation, and there is no need for an obligation to establish an obligation; and if they do not know, then there can be no obligation, or it can only be in the form of a preliminary contract;
b) pragmatic - that the meaning appears when the right is alienated from its subject, i.e. it is born by a turnover that relates to law impersonally, as only one of the objects, goods, freely passing from one person to another, for which there can be no theoretical obstacles, as they were not in the cases with shares, derivatives financial instruments and shares in authorized capital LLC (see also: Ivanov S.S. On a transaction aimed at alienating a share / / Journal "Law". - 2012. - No. 8, pp. 137-138). The complication of social relations has led to the emergence of new values, objects of a derivative (secondary) type, when not only things (persons) in themselves can bring benefits, but also social products in the form of rights to things (to persons) formed by developed social reflection.
In connection with the ratio of the option and the option contract, two questions also arise:
1. Is an option agreement an option contract? No, it is not, since no action is required from the option issuer - the option is "granted" by virtue of the agreement, automatically, i.e. The right to conclude a contract arises immediately at the time of the conclusion of the agreement. In other words, the exercise of an option is not an exercise of the option grant agreement because no such exercise is required.
2. Can an option agreement be structured as an option contract? Maybe, since, within the meaning of clause 1 of article 429.3 of the Civil Code, the parties have the right to postpone the emergence of the right to conclude an agreement and (or) condition its occurrence by any circumstances, incl. the demand of the buyer of the option to issue it.
Here, as a completely appropriate analogy, as far as personal rights are concerned, the model of the ratio of the basis of the cession and the cession itself dissolved in this basis in clause 2 of Article 389.1 of the Civil Code (see also: Ivanov S.S. Decree. Op. P.134) - this model works by default, however, the parties have the right, by applying the principle of separation, to separate in time the moments of the conclusion of the contract and the “execution” of the “administrative transaction” on it, or rather, the occurrence of conditions under which the administrative effect laid down in the contract is realized .
An option to conclude a contract (Article 429.2 of the Civil Code of the Russian Federation) is a novelty of Russian contract law that first appeared in civil law in the summer of 2015.
The scheme of the option to conclude a contract is the following sequence: one party, through an irrevocable offer, gives the other party the right to conclude a civil contract or several contracts on the terms of the offer. The second party has the right to accept the offer at a convenient time for it (within the validity period of the option), or may not accept it at all.
option, by general rule, reimbursable offer. Free of charge must be negotiated separately. The payment under it is not set off against payments under the contract if it is concluded on the basis of an option. The payment is also non-refundable in case of non-acceptance of the offer.
If the option does not specify a period during which the offer can be accepted, the period is considered to be one year. A different term may follow from the contract or customs. An option can provide that acceptance is possible upon the occurrence of some condition.
The option must contain a description of the subject and other essential terms of the contract to be concluded.
The forms of the option and the contract to be concluded on its basis must match. It does not matter whether the option is made in the form of a separate document or included in another agreement. The possibility of a cession should be specifically stipulated.
It is impossible not to note the similarity of the essence of the option to conclude a contract and the option contract - with the difference thatan option contract implies the possibility of demanding performance under an already concluded contract, and an option provides a guaranteed right to conclude a contract in the event of such a desire from the second party without the possibility of refusal to conclude a contract for the first party.
Both forms were in demand in one area - the provision of the right to rent trading places in pavilions and markets. In this case, making a conclusion about the essence of the existing legal relations, neither the parties themselves nor the courts focused on the difference in legal regulation an option agreement and an option to conclude a contract and could refer in the decision to both at the same time. In addition, in judicial acts, the option to conclude a contract is often compared with a preliminary contract.
Decision of the Arbitration Court of the Republic of Tatarstan on the caseNo. А65-4266/2016 dated May 16, 2016):
"with 06/01/2015 entered into force article 429.2 Civil Code Russian Federation, which provides for the possibility of concluding an agreement on granting an option to conclude a contract (an option to conclude a contract).
The benefit of the buyer (acquirer) under the option agreement is that he can, but is not obliged to conclude a certain agreement with the seller of the right. The seller, meanwhile, is obliged to conclude an agreement at the request of the option buyer, for which he receives a certain fee (reward).
Decree 9 of the AAC dated 05.10.2015 in case No. A40- 72903/15:
The option to enter into a contract meansprecisely that contractual structure, by virtue of which one party, through an irrevocable offer, grants the other party the right to conclude one or more contracts on the terms provided for by the option.
The fact that the preliminary agreement provides for the plaintiff's right to use the object in respect of which the parties undertook to conclude the main agreement does not indicate that the defendant was granted an option to conclude a lease agreement.
From the literal content of the receipt, it follows that the cash is transferred as an advance for the sale of lease rights, and not for the provision of an option to enter into a lease agreement. Since the defendant is the owner of the object of the lease agreement, it accordingly does not have the opportunity to conclude a transaction, the subject of which would be the alienation (disposition) of the right belonging exclusively to the tenant, that is, the user of the property acting as the object of the lease obligation.
Another area of application where the option to conclude a contract has become widespread is transactions for the transfer of rights to shares in an LLC - in the form of offers for the alienation of shares with the corresponding legal consequences.
We illustrate the use of the option in this area using the example of a judicial act:
The decision of the Arbitration Court of the city of Moscow dated 07/09/2014 in case No. A40-9569 / 2014, left unchanged by Resolution 9 AAC dated 11/24/2014:
The parties entered into an agreement on the transaction for the alienation of a share in an LLC on the terms of an option (an optional right of the buyer not earlier than a certain period to buy from the seller a part of the share in the company). The maturity of the redemption period is not a mandatory reason for the redemption of shares. If the demand from the buyer is not received within 10 days from the date of redemption, the option expires. The seller undertakes to return the cost of the redemption item to the buyer, and the value of the option premium becomes the property of the seller.
The value of the ransom item was transferred by the buyer to the seller on receipt. The redemption period has come, the redemption request has not been received. The buyer demanded to return the cost of the ransom item, which was not performed by the seller on a voluntary basis. The court terminated the contract at the request of the buyer in connection with a significant violation by the other party of the terms of the contract, recovered money from the seller as unjust enrichment.
After the advent of Art. 429.2. Civil Code of the Russian Federation in paragraph 11 of Art. 21 of the Federal Law “On LLC”, the following changes were made: a transaction aimed at alienating a share or part of a share in the authorized capital of a company, in exercise of an option to conclude an agreement, can be made by a separate notarization of an irrevocable offer (including by notarization of an agreement on the provision option to conclude a contract), and subsequently notarization of acceptance.
An irrevocable offer is considered accepted from the moment of notarization of acceptance. After notarization of acceptance, the notary is obliged to send a notice to the offeror within two working days from the date of certification of acceptance.about the acceptance.
Due to the constant development of the market recent times options or option agreements became popular.
But since we will be talking about material values that are not presented in a solid form, many have difficulties. Firstly, with an understanding of what it is, and secondly, how to conclude it. This is what we are trying to figure out now.
What is an option agreement
In essence, under such an agreement, people invest a certain amount and receive:
firstly, any shares, assets and similar securities;
secondly, the right to demand their sale for a certain monetary reward. Moreover, they can transfer this right of demand to another person.
A certain period of time is provided for the operation of such an agreement. And in this regard, the execution can be performed in two ways, one of which is discussed in advance at the conclusion.
The first way is that you can execute it at any time during the provided period of time.
The second method is more stringent: it provides for execution on a specific date, which is agreed in advance. But, of course, many more often prefer the first option, as it provides more freedom of action.
What is written in such an agreement
Now let's talk about what generally needs to be recorded in this document.
First of all, of course, data on those who conclude it. Everything is standard here, as in any other contract or agreement.
The following describes in as much detail as possible what you are entering into an agreement, that is, its subject matter. All characteristics and those conditions that may change regardless of those who enter into an agreement, for example, the price, are carefully prescribed.
Although it is better to set aside a separate, detailed clause in the agreement for the price, so that there are no disputes and questions in the future.
After that, we fix all the rights and obligations of both one party and the other. And since there are rights and obligations, then it is necessary to foresee what will happen if someone violates any of the clauses described in the agreement. This point, as well as in any other agreement, needs to be given close attention.
If you admit that in the course of the activity the agreement will need to be changed, then you need to immediately discuss and prescribe how you will do this.
At the very end, if you wish, write down how you will resolve the disputes that arise. Set the date on which you conclude the agreement and sign it. That's all!
Below is a standard form and a sample option agreement, a version of which can be downloaded for free.
An option design is an agreement under which the buyer of the option acquires the right to initiate a transaction within a specified period, and the seller of the option is obliged to execute it. The external manifestation of the structure is a separate contract (option), or a condition in the contract (option contract).
The buyer of an option uses his right depending on the profitability of the transaction in a certain period of time. For the other side, this is an inconvenience due to the uncertain state of affairs, for which, as a general rule, it receives compensation - an option premium.
The option model can be found in various transactions (purchase and sale, supply, lease, contract, etc.).
Classic design example: the owner of the company, as a motivation, enters into an option agreement with the top manager for the second purchase of a certain number of shares in advance set price. If the top manager works productively, the company's shares will rise in price, and he will buy them cheaper.
Types of optional designs
By virtue of the principle of freedom of contract, constructions that are essentially options have been encountered in Russian business practice for a long time, however, the courts have qualified the relationship in different ways and there was no need to talk about the predictability of the turnover.
In 2015, articles appeared in the Civil Code (Civil Code of the Russian Federation): 429.2 “Option to conclude an agreement” and 429.3 “Option agreement”.
Option to conclude a contract (429.2 of the Civil Code of the Russian Federation)
In accordance with paragraph 1 of Art. 429.2 of the Civil Code of the Russian Federation, an option to conclude a contract is an agreement of the parties, according to which one party, through an irrevocable offer (proposal to conclude a contract), grants the other party the right to conclude one or more contracts on the terms provided for by the option. The other party has the right to conclude a contract by acceptance (agreement to conclude a contract).
Accordingly, the seller of the option will be the offeror, and the buyer (holder) of the option will be the acceptor.
This design involves the preparation of two documents: an option and a main contract, which can be drawn up immediately or later.
Option in without fail contains conditions by which it is possible to identify the subject of the future contract. An option and a contract are drawn up in the same form. That is, if the main contract is drawn up in writing, then the option is drawn up in writing. If the main contract is certified by a notary, the option is also certified (for example: buying a share in an LLC).
By virtue of paragraph 2 of Art. 429.2 of the Civil Code of the Russian Federation, the parties are entitled to set a period for acceptance, if it is not specified - equals one year, by default. Unless otherwise agreed by the parties, the rights to the option may be assigned to a third party.
Peculiarities certain types options are set by law. For example, in Article 2 of the Federal Law "On the Securities Market" the concept of "issuer option" is enshrined. Issuer option - issuance security that secures the right of its owner to purchase a certain number of the issuer's shares at a predetermined price. An issuer is an organization that issues shares.
Option agreement (429.3 of the Civil Code of the Russian Federation)
The design of the option agreement involves the inclusion of an option condition in the agreement, as a result of which, one party, on the terms provided for by this agreement, has the right to demand in fixed time from the other party to perform the actions provided for by this agreement.
The option agreement must contain the essential terms required for the respective type of agreement. For example, a lease agreement contains information about the rental object and the price. At the same time, some option holders reserve the right to determine the content of certain conditions (for example: the quantity of goods in the supply contract).
As a general rule, an option premium is paid for the right to claim under an option agreement. By the way, an option agreement is free of charge in some cases, these are: (a) a direct indication in the contract, (b) free of charge is assumed based on the nature of the relationship (resolution of a disputable situation when the vote divided the shareholders equally) or when compensation is not required (purchase of securities at market value).
General rule: if the right of claim has not been used in time, the option premium is not refundable. Perhaps the parties will provide a different procedure.
In a situation where the requirement needs to be “activated” only after the occurrence or non-occurrence of certain events, the option contract is concluded under a resolutive and / or suspensive condition. The resolutive condition terminates the transaction upon the occurrence or non-occurrence of the consequences. A suspensive condition "postpones" the transaction until certain consequences occur. Thus, under a suspensive condition, the option holder will be able to exercise his right only after the occurrence of this condition.
Similarities and differences between an option and an option contract
The essence and economic function are the same for both structures. The differences between them are manifested in the mechanism of application.
Similarities:
- The terms are enforceable in the future.
- Compensation is assumed (the presence of an option premium).
- The option premium is generally non-refundable.
- The admissibility of concluding a contract under a resolutive and suspensive condition.
- Turnover. The possibility of assigning the right to a third party.
Differences:
- Under an option, the right to conclude an agreement is acquired, and under an option agreement, the right to demand under an already concluded one.
- In the case of an option agreement, no conclusion is required additional agreement, as opposed to an option.
Optionversus. Preliminary agreement
Considering an option as a tool for concluding a contract in the future, we note its similarity with the design of a preliminary contract. However, their difference lies in the fact that, by virtue of a preliminary agreement, the parties receive an obligation to conclude an agreement, and when an option is accepted, the agreement is automatically considered concluded.
Conclusion
The option structure has been used for a long time and allows you to flexibly structure business transactions. The parties may foresee and limit the risks of the transaction in advance. The help of a lawyer in formulating the provisions of the contract can be key.
