Understanding corporate finance: derivative contracts: types of derivative: limits to the regulatory definitions
Limiting the scope of the FSMA 2000 definitions
As they stand, the FSMA 2000 definitions - particularly those of ‘future’ and ‘contract for differences’ - are so wide that they would bring into the regulatory regime all sorts of contracts that no one would normally think of as investments.
For example, someone buying a house will usually sign a purchase contract, pay the purchase price, and take possession of the property at a later date. So between exchange of contracts and completion, the house buyer could be seen as holding a ‘future’ - rights under a contract for the sale of property, where delivery is to be made at a future date. Unless qualified, this might lead to the conclusion that all estate agents ought to be authorised by the FSA! The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI2001/544) limits the scope of these definitions for regulatory purposes.
A contract is not a future if it is made for commercial, rather than investment, purposes. A contract traded on a recognised investment exchange, or an OTC contract couched in the same terms, is automatically regarded as being for investment purposes. Any other sort of contract will generally be regarded as having a commercial purpose if it is intended to result in something being delivered.
Options are limited to those which acquire or dispose of (broadly) financial assets, currency, or precious metals. It does not include, for example, an option held by a builder to acquire land.
Contracts for differences
Contracts which are intended to result in delivery, deposits of money, and insurance contracts are all specifically excluded from being CFDs. Unlike futures, there is no investment versus commercial purpose test - all CFDs are regarded as investments.
The FSMA 2000 definition of contract for differences refers to a contract ‘the purpose, or pretended purpose, of which is to secure a profit or avoid a loss. ‘Pretended’ in this sense means ‘aimed for’ or ‘aspiring to’. It does not imply any fraud or deception.
In recent years, the term ‘contract for differences’ has come to refer to a particular derivative product which is sold mainly to individual investors. Such CFDs are based on the price movements of individual shares or bonds, stock market indices, or futures contracts. The customer agrees with the provider that for each day that the contract is open, the customer will pay the provider, or receive from the provider, a sum based on the upward or downward movement in the index or other reference indicator. Confusion can arise between this narrow sense of ‘contract for differences’ and the very wide sense in which the expression is used in FSMA 2000. Where the expression is used in this guidance, it is in the statutory sense. ‘New style’ CFDs will, of course, fall squarely within the statutory definition.
Gaming or wagering
In the 19th century, the term ‘contract for differences’ was used to differentiate contracts which were, in effect, bets on stock market movements from genuine transactions in shares. Until 1986 (when the predecessor legislation to FSMA 2000 came in) debts arising on the former were unenforceable because they were regarded as wagering contracts. Now such debts are enforceable provided the contract was entered into by way of business.
Case law (such as Morgan Grenfell and Co Ltd v Welwyn Hatfield District Council  1 All ER 1) has established that, although contracts for differences can be entered into speculatively, and may be capable of being wagers, they are not necessarily so. It will depend on the intentions of the parties. Since a company will normally enter into a derivative contract to hedge or to invest, rather than to wager its shareholders’ money, it would be unusual for a CFD entered into by a company to be a wager, and the point is irrelevant if the contract falls within CRA09/PT7 for tax purposes.