Option contract
 | The examples and perspective in this articledeal primarily with the United States and do not represent aworldwide viewof the subject.(December 2014) |
| Contract law |
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| Formation |
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| Interpretation |
| Dispute resolution |
| Rights of third parties |
| Breach of contract |
| Remedies |
| Quasi-contractual obligations |
| Duties of parties |
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| Related areas of law |
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| Otherlawareas |
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Anoption contract,or simplyoption,is defined as "a promise which meets the requirements for the formation of acontractand limits the promisor's power to revoke an offer ".[1]Option contracts are common in relation to property (seebelow) and inprofessional sports.
An option contract is a type of contract that protects an offeree from an offeror's ability torevoketheir offer to engage in a contract.
Under the common law,considerationfor the option contract is required as it is still a form of contract, cf.Restatement (Second) of Contracts§ 87(1). Typically, an offeree can provide consideration for the option contract by paying money for the contract or by providing value in some other form such as by rendering other performance orforbearance.Courts will generally try to find consideration if there are any grounds for doing so.[2]Seeconsiderationfor more information. TheUniform Commercial Code(UCC) has eliminated a need for consideration forfirm offersbetweenmerchantsin some limited circumstances.[3]
Introduction[edit]
An option is the right to convey a piece ofproperty.The person granting the option is called theoptionor[4](or more usually, thegrantor) and the person who has the benefit of the option is called theoptionee(or more usually, thebeneficiary).
Because options amount to dispositions of future property, incommon lawcountries they are normally subject to therule against perpetuitiesand must be exercised within the time limits prescribed by law.
In relation to certain types of asset (principallyland), in many countries an option must be registered in order to be binding on a third party.
Application of option contract in unilateral contracts[edit]
The option contract provides an important role inunilateral contracts.In unilateral contracts, the promisor seeks acceptance by performance from the promisee. In this scenario, the classical contract view was that a contract was not formed until the performance that the promisor seeks wascompletelyperformed. This was because the consideration for the contract was the performance of the promisee. Once the promisee performed completely, consideration was satisfied and a contract was formed and only the promisor was bound to his promise.
A problem arose with unilateral contracts because of the late formation of the contract. With classical unilateral contracts, a promisor can revoke his offer for the contract at any point prior to the promisee's complete performance. So, if a promisee provides 99% of the performance sought, the promisor could then revoke without any remedy for the promisee. The promisor had maximum protection and the promisee had maximum risk in this scenario.
The modern view of how option contracts apply now provides some security to the promisee in the above scenario.[5]Essentially, once a promisee begins performance, an option contract is implicitly created between the promisor and the promisee. The promisor impliedly promisesnotto revoke the offer and the promisee impliedly promises to furnish complete performance, but as the name suggests, the promisee still retains the "option" of not completing performance. The consideration for this option contract is discussed in comment d of the above cited section. Basically, the consideration is provided by the promisee's beginning of performance.
Case lawdiffers from jurisdiction to jurisdiction, but an option contract can either be implicitly created instantaneously at the beginning of performance (the Restatement view) or after some "substantial performance".Cook v. Coldwell Banker/Frank Laiben Realty Co.,967 S.W.2d 654 (Mo. App. 1998). Case law inEngland and Waleshas established that in exercising an option, a grantee "must comply strictly with the conditions for its exercise".[6]
It has been hypothesized that option contracts could help allowfree market roadsto be constructed without resorting toeminent domain,as the road company could make option contracts with many landowners, and eventually consummate the purchase of parcels comprising the contiguous route needed to build the road.[7]
Assignability[edit]
It is a general principle of contract law that an offer cannot be assigned by the recipient of the offer to another party. However, an option contract can be sold (unless it provides otherwise), allowing the buyer of the option to step into the shoes of the original offeree and accept the offer to which the option pertains.[8]
Contract theory[edit]
In economics, option contracts play an important role in the field ofcontract theory.In particular,Oliver Hart(1995, p. 90) has shown that option contracts can mitigate thehold-up problem(an underinvestment problem that occurs when the exact level of investment cannot be contractually specified).[9]However, there is a debate in contract theory whether option contracts are still useful when the contractual parties cannot rule out future renegotiations.[10]As has been pointed out by Tirole (1999), this debate is at the center of the discussions about the foundations of theincomplete contractstheory.[11]In a laboratory experiment, Hoppe and Schmitz (2011) have confirmed that non-renegotiable option contracts can indeed solve the hold-up problem.[12]Moreover, it turns out that option contracts are still useful even when renegotiation cannot be ruled out. The latter observation can be explained by Hart and Moore’s (2008) idea that an important role of contracts is to serve as reference points.[13]
See also[edit]
References[edit]
- ^Restatement (Second) of Contracts§ 25 (1981)
- ^"Examples and Explanations for Contracts, 7e", Brian Blum, 2017 p. 104 [p. 109 in PDF version]. Wolters Kluwer.
- ^"Uniform Commercial Code - § 2-205. Firm Offers".Cornell University Law School, Legal Information Institute.
- ^"Optionor".
- ^See § 45 ofRestatement (Second) of Contractsfor theblack letter lawof the option contract's application to this situation.
- ^Lawton, LJ,Holwell Securities v Hughes [1973] EWCA Civ 5,England and Wales Court of Appeal(Civil Division), delivered 5 November 1973, quoting fromHare v. Nicholl,1966 2 Queens Bench, 130, accessed 8 September 2023
- ^Benson, Bruce L. (2006). "Do Holdout Problems Justify Compulsory Right-of-Way Purchase".Street Smart: Competition, Entrepreneurship, and the Future of Roads.p. 65.
- ^John D. Calamari, Joseph M. Perillo,The Law of Contracts(1998), p. 707.
- ^Hart, Oliver (1995).Firms, contracts, and financial structure.Clarendon Press.
- ^Lyon, T. P.; Rasmusen, E. (2004)."Buyer-Option Contracts Restored: Renegotiation, Inefficient Threats, and the Hold-Up Problem"(PDF).Journal of Law, Economics, and Organization.20(1): 148–169.doi:10.1093/jleo/ewh027.ISSN8756-6222.
- ^Tirole, Jean (1999). "Incomplete Contracts: Where do We Stand?".Econometrica.67(4): 741–781.CiteSeerX10.1.1.465.9450.doi:10.1111/1468-0262.00052.ISSN1468-0262.
- ^Hoppe, Eva I.; Schmitz, Patrick W. (2011). "Can contracts solve the hold-up problem? Experimental evidence".Games and Economic Behavior.73(1): 186–199.doi:10.1016/j.geb.2010.12.002.S2CID7430522.
- ^Hart, Oliver; Moore, John (2008). "Contracts as Reference Points*".Quarterly Journal of Economics.123(1): 1–48.CiteSeerX10.1.1.486.3894.doi:10.1162/qjec.2008.123.1.1.ISSN0033-5533.