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If the terms of the option contract are violated, enforcement of the obligation in kind by the court to enforce the obligation in kind does not raise practical doubts, since the terms of the obligation of the obligated party and the purpose of this obligation are clearly and unambiguously defined in the option agreement.

Much more complicated is the mechanism for realizing this method of protecting the law by obligating execution in kind in case of evasion of the obligated party from the conclusion of the main contract within the framework of the option agreement.

Formally, within the framework of such an agreement, the obligated party assumed only one obligation – to conclude a basic contract. Other commitments have not yet arisen.

Consequently, the obliging party has the right to demand only the enforcement of the obligation that exists.

It is such a sustainable approach that has been chosen by the law enforcement practice with respect to the settlement of disputes arising from a preliminary contract, which by its legal nature is similar to an agreement to grant an option to conclude a contract137.

However, the analysis of law enforcement practice testifies to an attempt to change this very practice.

A typical example is the definition of the Chamber of Civil Cases of the Supreme Court of the Russian Federation of November 8, 2016 No. 18KG16124138. In this dispute, the plaintiff asked to oblige the defendant to fulfil obligations under the main contract, while the plaintiff also asked to recognize the fact that such a contract was concluded as the main one under the preliminary

137Decree of the Federal Arbitration Court of the North-Western District dated April 16, 2013 on case No А44-

5718/2012 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date:

27.08.2017).

138Ruling of the Court Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 08, 2016 No 18-КГ16-124 [Electronic resource]: Access from the legal reference system “Consultant Plus” (access date: 27.08.2017).

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contract. Considering the dispute, the Judicial Board of Civil Cases of the Supreme Court of the Russian Federation, found no grounds for recognizing such a method of protecting the law as inadequate and considered the dispute on the merits.

Is it possible to apply this approach to the protection of rights in the framework of an agreement to grant an option to conclude a contract? Theoretically, such a probability is not excluded.

In accordance with Art. 429.2 of the Civil Code of the RF the right to conclude a basic contract is granted by one of the parties through the acceptance of a previously submitted offer. The terms of the main contract are also determined between the parties in advance – at the conclusion of the option agreement.

The conclusion of the main contract within the framework of the option agreement provided is a legal fact that can be contested or recognized by the parties in this case and without the creation of a single additional document.

In order to determine the proper way to protect the right, it is necessary to determine the actual goals that the parties have pursued, assuming the obligations set forth in the option agreement.

The purpose of the conclusion, both the option agreement itself and the main contract for the parties, is not the fulfilment of a deal, but the sale and, accordingly, the acquisition of certain material goods by supplying goods, performing works, providing services.

The option agreement contains not only obligations to conclude a basic contract, but also its essential conditions. Art. 429.2 of the Civil Code explicitly provides that the main contract is not based on the conditions set out in the offer, but on the terms stipulated in the option agreement.

By entering into an option agreement, the counterparty party also assumes the obligation not only to conclude the main contract, but also to fulfil the obligations that constitute the essential terms of the main contract.

Consequently, the accepting party, having accepted the directive offer, has the right to declare a demand for the performance of the obligations incurred within

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the framework of the main contract in kind, and as evidence of the occurrence of such obligations – the requirement to recognize the fact of the conclusion of the main contract.

The right to demand the actual performance of the obligation in kind, within the framework of the option agreement, from the moment of acceptance of the directed offer arises both from the accepting party and from the party-provider. The objects of such requirements differ. So, the accepting party will mainly have requirements for the fulfilment of obligations for the delivery of goods, the performance of work or the provision of services. The requesting party has more inherent requirements for the acceptance of performance and / or its payment.

Unfortunately, law enforcement practice at present has not created a unified approach to the principle of real fulfilment of obligations in the system of option contractual structures. We cannot give examples that confirm the possibility of applying as a means of protecting the right of enforcement measures to the actual performance of the final obligation in the option agreement, bypassing the compulsion mechanism to conclude the main contract, since in such a situation the only way to protect the rights of the obliging party will be the requirement to compel the conclusion of the main contract.

But in our opinion, in the sphere of entrepreneurial activity, the most effective way to protect the violated right and economic interests of the accepting party under the option agreement is not to require the conclusion of a basic contract, but a requirement to fulfil the final terms of the main contract provided for in the agreement on granting an option for its conclusion. This conclusion is due to the fact that the ultimate goal of the parties to the option agreement is not yet the fact of entering into new contractual relations, namely the implementation of pre-defined terms of the main contract.

Thus, the implementation of option contractual structures is subject to general principles of performance of the contractual obligation. In order to form a uniform definition of the performance of the option obligation, it is proposed that

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Chapter 22 of Part 1 of the Civil Code of the Russian Federation be supplemented with Art. 320.2 "Execution of an option obligation" as follows:

"From the moment of receipt of the demand for the performance of an option obligation claimed by an authorized creditor or a person authorized by the creditor, the debtor is obliged, on predetermined conditions between the debtor and the creditor, to perform actions specified by the option obligation, or to stop the actions that are provided by the option, or refrain from performing the actions stipulated by the option obligation.

The debtor has the right to refuse to fulfil the option obligation, if the creditor omits the time limit for the application of the option demand, established by agreement between the creditor and the debtor.

By agreement between the creditor and the debtor, the term provided to the debtor for fulfilment of the preparations for the performance of the obligation specified in the option obligation and calculated from the moment of receipt by the debtor of the creditor's demand for the performance of the option obligation may be established.

It seems that the proposed change in the Civil Code of the Russian Federation will allow both to reflect the general principles of the fulfilment of the obligation, with reference to option contractual structures, and to highlight the distinctive features of the performance of the option obligation.

4.2. Realisation of the rights of the parties to an option to conclude a contract

or an option agreement

Any contract concluded between business entities is directed, directly or indirectly, to making profit in its own interests. Receiving income from the economic ties built as a result of contractual work is, inalienable, the right of every business entity.

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In general, the contract is an interconnected system of rights and obligations of the parties. In fulfilling their duties, the parties thereby realize the rights of the other party to receive performance. Thus, the realization of the rights of the parties

to the contract is possible only as a result of its bilateral execution.

Considering the mechanism of execution of economic contracts,

M.I. Braginsky notes that the best way to ensure the interests of the party in any civil contract is its actual execution139. The meaning of real execution, in M.I. Braginsky, consists in execution by the debtor of the duty in nature, in fulfilment of those actions which are stipulated by the obligation140.

The realization of the rights of a party to a contract does not, in turn, require the commission of additional actions from the party aimed at the realization of its contractual rights. Both in consensual and in real contracts, the realization of the rights of the parties occurs through the actual performance of contractual obligations by the other party to the contract.

Unlike other contractual structures, option contractual structures do not always provide for a passive expectation of the realization of the rights of counterparties.

As it has been repeatedly noted earlier, from the moment of concluding an agreement on granting an option to conclude a contract, the right of the accepting party arises to conclude a main contract to which the obligation to conclude a basic contract on the side of the offeror corresponds.

It is due to the individual characteristics of the option contractual structures that it is impossible to replace the direct will of the accepting party to conclude a contract by any actions that could be interpreted as such a will.

The problem of establishing the will of the accepting party is that Part 3 of Art. 438 of the Civil Code of the Russian Federation provides the participants of civil relations with the opportunity to replace the actual and unquestionable will of

139Braginsky M.I. General theory of business contracts. Minsk: Nauka i Tekhnika, 1967. P. 197.

140Braginsky M.I. General theory of business contracts. Minsk: Nauka i Tekhnika, 1967. P. 194.

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the party in the form of acceptance of a directed offer by actions that can be interpreted by the tendering party as consent to the conclusion of the main contract. Part 3 of Art. 438 of the Civil Code directly indicates that the commission by the person who received the offer, within the time period established for its acceptance of actions to fulfil the conditions of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) is considered acceptance, unless otherwise provided by law, other legal acts or specified in the offer. And the list of actions that can be interpreted as an acceptance of a directed offer is open.

In practical entrepreneurial activity, especially when an entrepreneurial subject experiences uncertainty in deciding on the purchase of a particular product, it is unacceptable to substitute for his actual expression of will by interpretation of concluding actions.

Option contractual structures are, including organizational ones. The same organizational nature is also the actions that take place when the direct offer is accepted.

Experiencing the uncertainty in the expediency of concluding the main contract, the accepting party still has the right to make a number of the same organizational actions aimed at further accepting the result of performance under the main contract, for example, specify shipping details, make a preliminary payment for the delivered goods.

Such actions do not indicate that the accepting party has decided on the fate of the main contract. Given the risky nature of entrepreneurial activity, as an acceptance of an offer sent under the option agreement, only the specific and unambiguous will of the accepting party can be considered, which is directed specifically to the party-provider and not to another person, even if that person is a counterparty, and the party-acceptor.

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A similar situation arises in the execution of an option contract, in spite of the fact that this option contractual structure does not use the institution of accepting a direct offer in the construction of contractual relations.

The fact of the conclusion of the option agreement, and not the supply contract or the contract for the performance of work or the provision of services, is caused precisely by the uncertainty of the entrepreneurial goal in the form of obtaining a result of performance on demand for the obliging party. The binding party is entitled, having experienced uncertainty in making a decision on the necessity of claiming, to perform certain actions for the timely acceptance of performance from the obligated party within the framework of the option agreement. Even if such actions are committed with the participation of the obligated party, they cannot be interpreted as a will of the obliging party to accept execution of the option contract from the obligated party.

The right to require the conclusion of a basic contract under an option agreement or the right to demand the performance of certain actions within the options contract is indeed the right of the entitled party. Moreover, such right, as the goods, the authorized party acquired as a result of the deal.

In entrepreneurial activity, this means that the business entity under the contract has acquired a mechanism for the implementation of its own commercial interests and has the right to use it in its discretion, within the scope provided by the option agreement or the option agreement.

Clause 3 of Art. 1 of the Civil Code of the Russian Federation determines that in the establishment, implementation and protection of civil rights and in the performance of civil obligations, participants in civil legal relations must act in good faith141.

141 The principle of good faith is also mentioned in clause 4 of Art. 450.1 Civil Code of the Russian Federation. The party to whom the Civil Code, other laws or the contract granted the right to refuse the contract (the performance of the contractual obligations), in the exercise of this right must act in good faith and reasonably within the limits provided by the Civil Code, other laws, other legal acts or contract.

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The right to demand a conclusion, the main contract, acquired by the business entity under the option agreement, is unconditional. It is limited only by the term of its operation, established by the terms of the option agreement.

This means that not presenting a requirement to conclude a main contract by the accepting party within the time limit specified in the option agreement is also a way of realizing the right that belongs to it.

This way of realizing the right to demand the conclusion of a basic contract is not a waiver of the contract or its execution. This right was acquired by the accepting party to the deal, on a reimbursable basis and for the sole purpose of disposing of it at its own discretion.

Undoubtedly, the party-provider within the framework of the option agreement is interested in concluding the main contract. However, the lack of the will of the accepting party in no way violates the rights of the party-provider. At the time of conclusion of the option agreement, the granting party granted to the accepting party the right to enter into a basic contract, which can be realized either by way of a will to conclude a basic contract or by silence. In the option contractual structure, the silent of the authorized party is both a refusal to enter into a basic contract, and a way of realizing the right of claim. The refusal to conclude a basic contract by default on the part of the acceptor, as a way of exercising the right of claim, is due to the economic interest of the accepting party not to purchase the goods conditioned by the subject of the contract in connection, say, for example, with a change in the economic situation in the commodity market.

From the moment of acceptance of an irrevocable offer directed by the receiving party or the expiry of the period for such an acceptance, the right to enter into the main contract is deemed to be realized by the accepting party.

At the same time, the right to conclude a basic contract, under certain circumstances (receipt of an acceptance by the binding party of a previously submitted offer) also arises from the obligated party. At this stage of the execution

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of the agreement on granting an option to conclude a contract, the conclusion of the main contract becomes binding on both parties.

Similarly, the right to claim execution, arising from the obliging party within the framework of the option contract, is considered. The right of the obliging party of the option contract to require the obligated party to perform the actions provided for by such agreement is completely subordinated to the economic interests of the obliging party.

The time of realization of this right of demand does not take into account the economic interests of the obligated party. Such interests of the obliged party were taken into account at the time of conclusion of the option agreement and determination of the amount of payment payable by the obliging party in favour of the obligated party for granting the right to demand execution within the framework of the option contract at a certain time period.

The binding party of the option contract has the right to dispose of the right of the demand for the performance of the contract and the right acquired by the contract in two ways.

The first way is to declare such a demand and receive from the obligated party the result of the execution of actions provided for by the option agreement.

The second way is the default of the binding party during the validity period of the requirement regarding the necessity of performing actions stipulated by the option agreement for the obligated party. This silence is not a refusal by the obliging party to execute the option contract.

The expiration of the performance requirement, which was never claimed by the obliging party to the option agreement, is also subject to the economic interests of the obliging party.

At first glance, it seems that in the option agreement, as well as in the option agreement, there is a significant imbalance of rights in favour of the obliging party or the accepting party (in the option agreement). In practice, this is far from the case.