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The obligated party in the option agreement, as well as the supplying party in the option agreement, also have a set of rights that are no less significant than the rights of the obliging party or the accepting party.

First of all, this is the right to receive an option fee, which arises both from the obligated party within the options contract and from the provider side in accordance with the terms of the option agreement. The obligation to pay an option fee is the counterparty obligation of the obliging party in the option agreement in relation to the obligation of the obligated party to perform the actions specified in the option agreement. Accordingly, payment of the option fee is a counterparty obligation of the accepting party in the option agreement in relation to the obligations of the supplying party – to conclude the main contract on the terms stipulated by the option agreement.

The counterparty nature of the obligation to pay an option fee in entrepreneurial activity is a mechanism for the property protection of counterparties (obligated parties), which hand the further fate of their property interests to other parties in option contractual arrangements.

In the absence of payment of an option fee, the obligated party shall have the right to refuse from the performance of actions determined by the condition of the option agreement. Also, the supplying party has the right to refuse the conclusion of the main contract provided for by the option agreement, provided that the accepting party does not fulfil its obligation to pay the option fee.

Such refusal is not a unilateral refusal to fulfil obligations and is not subject to the provisions of Part 1 of Art. 310 Civil Code, according to which unilateral refusal to fulfil the obligation and unilateral change of its terms are not allowed, except in cases stipulated by the Civil Code, other laws or other legal acts.

The refusal in question has a legal basis, established by cl. 328 of the Civil Code of the Russian Federation, according to which in the case of failure to provide the obligation provided by the contract by the party provided for by the contract or in the presence of circumstances that clearly indicate that such performance will not

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be effected within the prescribed period, the party on whom the counter performance is liable has the right to suspend the performance of its obligation or refuse to fulfil this obligation and demand compensation for damages.

The refusal of further execution of the option agreement, as well as the option agreement, also has an economic basis.

By concluding an option agreement or option agreement, a business entity, assuming a voluntary obligation to enter into a primary contract in the future or to take certain actions at a predetermined price and on pre-determined conditions, obviously expects compensation for the risk of change during the time period of the price of such performance.

If there is no option compensation, such a business entity is deprived of practically the same income, which he expected, entering into contractual relations.

The supplying party in the option agreement also has the right to terminate its obligation to conclude the main contract in connection with the expiration of the period for acceptance of the directed offer. At the same time, the obligation does not cease, namely, it is repaid.

The problem of legal regulation is that the Civil Code of the Russian Federation does not contain a clear mechanism for repayment, voluntarily assumed the obligation to conclude a contract at the end of the period for the acceptance of an offer sent under this obligation.

In principle, the Civil Code does not provide for such a legal category as the validity of the obligation142. The liability law operates only with the legal category of the term of performance of the obligation. Also art. 429.2 of the Civil Code does not provide for termination of the obligation of the party-provider to conclude the main contract in connection with the expiration of the period for acceptance. We

142 Clause 1, Art. 407 of the Civil Code of the Russian Federation determines that the obligation ceases entirely or partially on the grounds provided for by the Civil Code of the Russian Federation, other laws or other legal acts or an agreement. The Civil Code of the Russian Federation does not provide for the expiry of the term as a ground for termination of the obligation.

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believe that the term of the obligation is a contractual condition and by default is equal to the period provided for acceptance under the option agreement of the offer.

In this case, the provisions of Art. 440 of the Civil Code of the Russian Federation, according to which, when the offer is defined for acceptance, the contract is considered concluded if the acceptance is received late. Article 440 of the Civil Code regulates the procedure for concluding an agreement with the free will of the parties. Within the framework of the option agreement, the main contract is binding on the supplying party due to a voluntarily assumed obligation. Also art. 440 Civil Code does not determine the fate of the offer at the end of the period for its acceptance.

We believe that the obligation of the contracting party to conclude the main contract is subject to termination on grounds similar to those provided for in Art. 416 Civil Code of the Russian Federation in connection with the impossibility of execution.

The silence of the accepting party during the validity of the offer sent under the option agreement is the right of this party and lies outside the area of the area of responsibility, both the accepting party and the supplying party. The accepting party cannot bear any responsibility or be responsible for any chosen way of exercising its right under the option agreement.

At the same time, the expiry of the term for accepting the offer, sent under the option agreement, means that under the option agreement there is no party authorized to claim the conclusion of the main contract and to accept the corresponding execution from the party-provider. Independently the party-offerer does not have the opportunity to initiate the conclusion of the main contract beyond the term of acceptance of the offer sent under the option agreement.

The mechanism for realizing the right of the obligated party to repay the obligation assumed under the option contract to perform actions specified in the contract in connection with the expiration of the period for the application of such a requirement by the obliging party is more specifically resolved.

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Clause 1 of Art. 429.3 of the Civil Code stipulates that if the empowered party does not file a claim within the specified period, the option agreement is terminated.

Thus, the release of the obligated party within the framework of the option contract, from the obligation assumed to commit certain actions, is made in accordance with the contract. Such grounds for termination of the obligation fully comply with Cl. 407 Civil Code of the Russian Federation.

In any case, in order to repay the obligations assumed, both within the option agreement and within the options agreement, due to the expiration of the time limit for the application of the relevant requirement or the expiry of the period for accepting the targeted offer, the interested parties need not take any active action. Repayment of such obligations is made in addition to the will of the parties concerned to the option contractual arrangements.

In order to form a single contractual institute of the option as a whole, it is also necessary to form general principles for the performance of the contractual obligation of the option, which could be applicable to any option contractual structure, both named and not named in the Civil Code of the Russian Federation.

In connection with this, it is proposed to supplement Chapter 32 of Part 1 of the Civil Code of the Russian Federation with Article 327.2 "Execution of the Option" with the following content:

"From the moment of receipt of the demand for the exercise of the option declared by the authorized creditor or a person authorized by the creditor, the debtor is obliged, on predetermined terms between the debtor and the creditor, to make certain options by the option, or to stop the actions that are provided by the option, or to refrain from fulfilment of actions provided by the option.

The debtor has the right to refuse to exercise the option if the creditor omits the deadline for the application of an option call, established by agreement between the creditor and the debtor.

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Another opinion belongs to V.V. Vityansky, who notes that the rights received by the option holder on the basis of an agreement on granting an option to conclude a contract are generally negotiable and can be assigned to another person, unless otherwise stipulated by this agreement or follows from its substance (clause 7 art. 429.2 of the Civil Code of the Russian Federation). Due to the absence of special rules governing relations related to the assignment of rights under the option to conclude a contract, the relevant relations are subject to general provisions on the assignment of claims (Chapter 24 of the Civil Code of the Russian Federation)144.

Partly agreeing with the opinions of both authors, we would like to note the following.

The binding party of an option agreement and an option agreement may transfer its rights under a contract to a third party. Provided in the framework of option contractual arrangements to the obliging party, the right to demand from one's own will the commission of a contractual obligation from the obligated party is secondary. It really, as a result of a unilateral will, changes the legal relationships of the parties. However, the legal nature of this right does not affect its exchangeability145.

The nature of the right of claim arising from the obliging party is not an obstacle to the transfer of such right to another person. Even the fact that the option contractual structure gives the right to claim a particular person does not affect the ability for an authorized person to give up his secondary right to other participants in civil turnover.

144Vitryansky V.V. Reform of the Russian civil legislation. Intermediate results. – Moscow: Statut, 2016. P. 180.

145It should also be agreed with the opinion of V.A. Belov, who notes that, as a general rule, a singular change of every person in any obligation on any of three grounds – delegation, assignment or transfer – should be considered admissible. The transfer (concession) of the second right entails a change of persons in the obligation, within which a second right arose. Consequently, the opinion of V.A. Belov also extends to the change of persons in the obligation in connection with the concession of the second right. They also rightly noted that the conclusion that the permissibility of a person's change in any obligation must be considered a general rule, and the prohibition of an exception. With such a conclusion, as V.A. Belov notes, L.A. Novoselov also agrees. (Belov V.A. Singular succession in obligation. Moscow: YurinfoR, 2000. P. 125). Thus, the legal nature of the transferred second right does not play a significant role in its assignment. The possibility of an assignment of rights can only be influenced by its legal nature – property or personal non-property law.

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The consent of the obligated party to such transfer may be required only if such consent is expressly provided for in the contract.

The transfer of all rights under an option agreement or an agreement to grant an option to conclude a contract can be made by the parties without mutual consent (unless such consent is provided for by the terms of the contract). Such assignment of rights may be a way of fulfiling the obligations of the parties to their counterparties in supplying goods, performing works or providing services that are the subject of an option agreement or a basic contract in an agreement to grant an option to enter into a contract or a method of payment for the goods, services.

In this case, the parties can concede their rights in part. The assignment of rights within the framework of option contractual arrangements is also effective because the conceding party not only fulfils its contractual obligations to the third party counterparty, but also removes the risks of improper performance of contractual obligations by the other party, since along with the rights to a third party also pass the right to demand the proper discharge of assigned obligations.

The exchangeability of rights arising in the framework of option contractual structures has, among other things, a negative character in entrepreneurial activity. It is capable of engendering a specific market of option liabilities among business entities, which currently exists only in the sphere of exchange activities. The civil turnover of commodity obligations that are not secured by the real availability of goods, in turn, will entail increased risks of bankruptcy of business entities.

Replacement of a person in the performance of obligations under an option agreement or an agreement to grant an option to conclude a contract in practice can be made only with the consent of the other party, provided that such a contractual condition is recognized as an essential one of the parties to the option contractual structure.

This circumstance is explained by the fact that in the sphere of entrepreneurial relations an important role for the creditor is played by the identity of the debtor, rather his financial status and by paying an option compensation the

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creditor (obliging party) wants to be sure that the debtor has an actual opportunity to fulfil the obligations assumed. No one will enter into an entrepreneurial agreement with a legal entity in whose financial condition there are, for example, signs of bankruptcy or which, by virtue of the nature of its activities, are simply unable to fulfil the contractual obligations in full.

By giving consent to the change of persons in the obligation under the option contract or agreement on granting an option to conclude a contract, the creditor seeks to be sure that, irrespective of the person assuming the obligation to fulfil obligations, these obligations will be executed in accordance with their terms.

Summarizing the conclusions regarding the scope of the rights of the parties to the option contractual arrangements and the mechanism for their implementation, I would like to draw attention to the fact that the parties to such contractual structures do not have equal rights.

A party that assumes the obligation to conclude a basic contract or perform actions specified by an option agreement experiences in such a contractual relationship a dependence on the economic interests of the empowered to require the performance of the party.

This does not mean that the legislator, introducing legal definitions of option contractual structures, sacrificed the interests of one party to the contractual relationship, for the sake of maximally complete and most convenient compliance with the interests of the other party.

The economic interest of the obligated party in option contractual arrangements is met through the provision of monetary option compensation or other performance by the entitled party. Without the provision of an option remuneration, the entitled party cannot fully realize the rights that it acquires in the framework of option contractual arrangements. Also, the legislator envisaged a mechanism for releasing the obligated party from the obligations assumed under the option contractual structure in connection with the expiration of the right to claim the claim by the authorized party. Thus, a business entity that has undertaken the

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obligation to conclude an economic contract in the future will not experience constant legal uncertainty. This uncertainty is limited to a specific period, which in turn allows you to determine the amount of option compensation.

In business, this means that it is possible to achieve the goals set for the conclusion of option contractual structures for the parties only by timely and conscientious implementation of the entire set of their contractual rights, since the implementation of one of the parties to their contractual rights entails the implementation of contractual rights by the other party.

4.3 Liability of the parties to option contractual structures for improper

performance of obligations

The interest of business entities that have entered into contractual relations in the proper performance of obligations arising in the framework of option contractual arrangements is conditioned not only by the desire to obtain maximum profit from the concluded deal. Option contractual structures are applied in the business sector mainly when contractual parties experience economic uncertainty and cannot sufficiently fully assess their needs for a particular product or the result of the work or services performed. Often, the emergence of such a need is conditioned by the need to fulfil other contractual obligations assumed by the obliging party of the option contractual structure to third parties. In the event of improper performance by the obligated party of its obligations under the option contractual structure, the obliging party may not have sufficient time to search for an alternative source of the goods, or the result of the work performed, services provided.

Defining the doctrinal concept of civil liability of O.S.Ioffe noted that civil liability is sanction for an offense that causes the offender to have negative

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consequences in the form of deprivation of subjective civil rights or the imposition of new or additional civil obligations146.

At present, the property responsibility of the parties, despite the existence of a sanction element in the form of payment of a penalty, has in general lost its sanctioning meaning and is more compensatory in nature, that is, it is aimed at restoring the property interests of the injured party.

General provisions on the responsibility of the parties to the contract, including parties to option contractual arrangements, are laid down in articles 393 and 394 of the Civil Code of the Russian Federation147. They are expressed in the form of compensation for damages and payment of penalties.

According to paragraph 1 of Art. 394 of the Civil Code of the Russian Federation if a default is established for improper performance or improper performance of the obligation, the losses are reimbursed in the part not covered by the forfeit.

In the aggregate, the compensation of damages in full and the additional payment of the penalty is a measure of economic impact on the unfair side of the contract, which makes it possible to create an absolutely economically unprofitable position of the party that violated the order of performance of the obligation.

The responsibility of the parties to option contractual structures for improper performance of their obligations is subject to the general principles of liability of participants in civil traffic for improper fulfilment of obligations – legality, full reparation, liability for fault.

Subordination of the responsibility of the parties to option contractual arrangements to the principle of legality consists in the fact that the involvement in

146 Ioffe O.S. Selecta in 4 volumes. Volume 3. Law of obligation. General theory on obligation – Saint

Petersburg. Publishing House “Legal Centre Press”, 2004. P. 141.

147 Considering the principles of civil liability, O.S. Ioffe pointed out that in the general system of civil law norms, the rules on liability play a supporting role, they are called upon to ensure the protection of public relations, which are regulated by such basic institutions as property rights, contracts, etc. In this regard, the nature of the principles that determine them is directly dependent on the nature of the tasks that, in accordance with the material needs of society, are entrusted to civil law in general (Ioffe O.S. Responsibility under Soviet civil law. Publishing House of Leningrad University, 1955. P. 18).