Polyakova V.E. Preliminary Agreement: Delimitation from Related Legal Instruments within Russia’s and Germany’s Law

Abstract: The article presents a comparative-legal analysis of the Russian`s and German`s approaches to the delimitation of the preliminary agreement from the related legal instruments: the letter of intent, the option, the pre-emption agreement, the framework agreement. The opportunity of use of the offered in doctrine of German law criteria of prior agreement from these structures in Russia is estimated. For this purpose the author reveals the nature of the rights arising from the purchase contract, and rights arising from the option in accordance with Russian law. The cases of agreements on pre-emptive right in accordance with the law in Germany and Russia and options for the legal qualification of such transactions are considered. The methodological basis of the article are the traditional scientific and special methods of investigation – dialectical, formal logic; method of analysis, synthesis, induction, deduction and comparison. Considerable emphasis is placed on the use of comparative legal method. The author concludes that in Germany and in Russia a similar understanding of the role and place of the preliminary contract and related legal structures in the civil law system, as well as the grounds for their differentiation between them are used. At the same time in Germany the attempts to find the primary differences between the preliminary and option contracts are made – considered the nature of the emerging law. Undoubtedly permitted to conclude agreements on pre-emptive right, extensively discussed the legal nature of such agreements and the possibility of their qualifications as preliminary. The conclusion about the possibility of using Russian developments of German scientists is made.

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