Derivative financial instrument in the system of civil contracts

The subject to be analyzed in the present article is the possibility of qualification of a derivative financial instrument as a separate contractual type. The objectives of the research are examination of the existing approaches and the analysis of the characteristics of derivatives. The derivatives can differ from other financial instruments since they have the derived character of value from a basic asset, orientation at hedging or speculation; risk-taking and urgency. In the course of the analysis the author comes to conclusion that any of the specified characteristics cannot be considered as the sign qualifying the derivative as an independent contractual type. Thus, a derived nature of value has legal sense only for non-deliverable and some deliverable derivative instruments, because of its influence on the allocation of rights and obligations of the parties to a contract. In the majority of deliverable derivatives this sign has no legal character since does not exert impact on the rights and obligations of the parties of the contract. Hedging can be considered as an orientation only in relation to default swaps or options in which the subjective right of the authorized person is put into dependence on a condition and this condition can cause negative consequences for the property status of the entitled party. Otherwise, the derivative is aimed at making profit due to change of basic asset's indexes. Speculation represents a motive for the sake of which the parties can conclude the derivative, but it is not an independent legal purpose. Non-deliverable and conditional deliverable derivatives are aleatory but most of deliverable derivatives are not, because the parties know the type of their performance by the contract's conclusion. The maturity of contracts can't be the qualifying attribute since most of defined contracts also have this characteristic. A risk-related character of derivatives is shown only in non-deliverable derivative instruments and in those deliverable derivatives, the performance of which depends on a condition. Deliverable derivatives are, as a rule, deprived of a risk-related character since the volume and the parties know the nature of performance at the stage of the conclusion of such contract. An urgent character, being found in all types of derivatives, cannot act as the individualizing characteristic because it can be equally found in many contracts, which are named in the civil code. The author comes to conclusion, that existing attributes either belong only to some derivatives or do not ascertain these financial instruments among other contractual constructions. Furthermore, some derivatives are similar to those enshrined in national civil legislation e.g. a wagering contract, contract of sale or barter.

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