The unpredictability of the development of the modern economy predetermines the interest of domestic entrepreneurs in legal structures that minimize risks. One of them is conditional transactions. Testing conditions for concluding contracts have recently become increasingly popular. Meanwhile, many experts recognize the existing regulatory support as unsatisfactory. Let us further consider the problems of regulating test conditions. 
General information
Test conditions for the deal come at the behest of one of its participants. Examples include obtaining a loan, registering property rights, reorganizing a company, defaulting or fulfilling obligations, and so on. Usually, the need to establish test conditions arises in the process of structuring complex contracts. For example, it can be large supply contracts, contract or investment agreements. In the framework of corporate relations, the types of test conditions have become quite widespread due to their inclusion in the contracts of the participants of AO and LLC.
Disputes
Despite the fact that the test conditions are quite in demand among representatives of large and medium-sized companies, the legitimacy of their inclusion in the agreements remains in question at present. This is confirmed by disputes that arose in the process of reforming domestic civil law. In particular, in the draft concept on improving the general provisions of the Civil Code, it was proposed to consider the test conditions as unacceptable.
Opponents of this position were the largest domestic companies and the government. In their opinion, the proposed ban was not sufficiently substantiated and significantly limited the possibilities of participants in entrepreneurial turnover in the activities to form a multi-stage system of contractual relations. Leading companies and government representatives also pointed to the risk of an increase in the number of appeals to the arbitration court. Test conditions in developed foreign countries are considered to have full legal force. In this regard, the government and representatives of the legal community advocate the possibility of legalizing them with some exceptions. 
Regulatory support
As a result of disputes between opponents and supporters of the prohibition to use test conditions, Art. 157 The Civil Code of the Russian Federation was retained unchanged. This rule governs the types of contracts under consideration. The editorial staff of the article does not expressly prohibit or allow the inclusion of conditions in the agreement whose occurrence depends on the will of the participants. As a result, the question still remains open.
The consequences of the unresolved situation
In practice, unsatisfactory normative regulation is manifested in the absence of one approach of the authorities when evaluating test and mixed terms of contracts. As a rule, authorized bodies proceed from the fact that the basis on which a contract can be concluded should be associated with an unpredictable circumstance. It should not depend on the will of the participants in the relationship. The courts justify this conclusion, referring to paragraphs 1 and 2 of Art. 157 Civil Code. In accordance with them, the contract is deemed to be concluded on the basis if the parties have made the termination or occurrence of obligations and rights dependent on a circumstance which, in turn, is unknown whether it will occur or not.
In some situations, this approach can be considered justified. This is due to the fact that it protects the interests of the creditor from the possible unfair behavior of his debtor. For example, under a loan agreement, an obligation to repay a debt arises only upon the sale or donation of an immovable object purchased with loan money. If the creditor determines that the debtor who refuses to alienate the housing evades repayment of the debt, the court will reasonably recognize the relevant condition as unlawful, since it is completely subordinate to the party to the transaction. 
Implicit dependency
It manifests itself, for example, in the case when the parties to the lease stipulate its entry into force by state registration of ownership of the potential lessor. In this situation, at first glance, there is no direct relationship between the will of the subject and the onset of the condition, since the final decision on conducting state registration with the appropriate entry in the Unified State Register remains with Rosreestr. In this case, the authorized instance acts in accordance with the established rules and cannot refuse applicants only at its sole discretion. Due to the fact that the decision will depend solely on compliance with the requirements of the law when submitting documents, in the above case the occurrence of the condition is completely dependent on the will of the potential lessor. Similar logic, based on the fact that state bodies are bound by the rules governing their activities, is guided by the authorities authorized to resolve disputes when evaluating other agreements that are concluded, for example, under the approval of their FAS. 
Rightfulness
In certain circumstances, the courts recognize the legality of the test conditions. It is expressed and justified in different ways. In particular, the recognition of legitimacy is carried out through an assessment of the degree of influence of the participant on the terms of the transaction, avoiding the very concept established in art. 157 of the Civil Code, the legalization of certain circumstances, as well as with "tacit consent". So, the basis can be regarded as admissible if its occurrence depends not only on the party to the agreement, but also on a third party whose influence will be of decisive importance.
According to the courts, the predominant effect of third parties on the onset of the terms of the transaction retains a state of uncertainty and is consistent with paragraphs 1 and 2 of Art. 157 Civil Code. An example is investment contract the acquisition of legal force by which the participants was made dependent on the approval of a third party. The court found this condition admissible. At the same time, the authorized body indicated that the appeal to a third-party entity really depends on the will of the participants, while the approval is not under the influence of their discretion. This practice confirms the validity of a differentiated approach to the consideration of test conditions. In his support, among others, the Ministry of Economic Development also spoke out. 
Another approach
The court may recognize the test condition as legitimate, evading the assessment of its compliance with the requirements of Art. 157 Civil Code. This approach is considered rather ambiguous. Nevertheless, YOU took advantage of it in the process of considering a dispute that arose under an agreement on the assignment of a part of the share of the authorized capital of the company. According to the conditions, if the purchaser did not pay the full price, it was supposed to terminate the agreement and terminate the established obligations. Despite the fact that in this case there is a circumstance depending on the will of the participants, YOU regarded it as an ordinary provision of the contract.At the same time, the court indicated that the law does not provide for the recognition of the terms of the agreement as null and void due to the fact that it does not meet the requirements that are presented to the excusable grounds.
findings
On the one hand, YOU evaded clarifying the situation. However, along with this, he abandoned the formal legal assessment and went on the way of finding the basis for recognizing the conditions as valid, guided by the need to provide protection to the more vulnerable party to the agreement and the needs of civilian traffic. This creates the prerequisites for changing attitudes and lower courts to conditions that depend on the will of the parties to the transaction. 
Conclusion
In accordance with the needs of civilian traffic and the legal principle of freedom of contractual relations, transactions under conditions that depend on the will of the participants should be recognized as lawful, except in certain cases. In this approach, the opinion of the Sun will be of particular importance. To date, only the Supreme Court can generalize the accumulated practical experience, take into account the most significant theoretical developments and give appropriate recommendations regarding the evaluation of contracts on test terms. 
Unlike the legislator, whose task is to develop universal legal norms, in the explanations of the Supreme Court it is possible to take into account the maximum possible number of features of various agreements, and also use a differentiated approach when considering them. This, in turn, would allow business entities to use fully a contingent transaction as a legal construct, and would also help to increase investor interest in the domestic economic system.
