Abstract
The paper provides analysis of the legal nature and the mechanism for exercise of the right of pre-emption (right of first refusal) in respect of execution of a contract taking as an example of right of first refusal to purchase a stake in a non-public corporation, and also examines the boundaries of parties’ autonomy and freedom of contract in this area. The author comes to the conclusion that the key elements of the construction of the right of pre-emption are the transformation powers that belong to the right holder. The author also demonstrates that, notwithstanding their dominance in Russian law, the views, which suggest that exercise of the right of pre-emption leads to “transfer of rights and obligations of a purchaser” (the translative theory), should be rejected. These views must be replaced with the constitutive theory, according to which exercise of the right of pre-emption results in a new contract between the right holder and the seller (as a general rule, on the same terms that were agreed between the seller and the purchaser).
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