Optional obligations provide the entity with the right to replace its debt with another form of performance provided for by the agreement. The lender should not refuse to the borrower in such fulfillment of obligations. Article 308.2 of the Civil Code of the Russian Federation establishes the norm and procedure for the implementation of optional obligations, subject to agreement between the parties at the time of the conclusion of the main contract or in the following order until it is executed.
What should be understood as a commitment?
The participants in the relationship conclude an agreement to perform certain actions:
- transfer of ownership;
- performance of work;
- timely payment of a loan;
- keeping trade secrets.
The parties sign an agreement where they indicate what is in their responsibilities:
- quality of the transferred products;
- time period for the return of funds;
- term for the provision of services.
One participant becomes a debtor, the other - its creditor, which requires the performance of duties. Third parties, if they do not participate in the case, may not be subject to requirements, conditions and obligations.
Legal representation
Obligatory laws undergo constant changes and adjustments under the influence of time. Amendments are made to existing institutions, new provisions are developed. The creation of optional obligations is an example of the introduction of a new legal phenomenon.
In civil law, this legal element has been developed, but the description is succinctly shortened. A more detailed explanation can be obtained from scientific articles and published works of legal scholars.
Basic properties
Lawyers established in the optional obligations the presence of signs:
- Replacing character. Fulfillment of obligations in one or several options, and each serves as a reason to terminate the agreement on the main agreement.
- The debtor can choose and replace the guarantee, relying on his own interests, not taking into account special instructions, from whom they come.
- It is the creditor's responsibility to accept any performance. It should not impede the free choice of the debtor, other actions are considered violations.
- The lender has the right to set requirements for the primary obligation. In this case, the other party may not have requirements for the counterparty to dwell on the optional performance of the obligation. This is done by the debtor at his will.
- When the main object disappears, the replaced responsibility becomes invalid. It is derivative and is influenced by the legality of credit requirements.
Distinctive features
Most contractual liability has a certain thing right away that needs to be given away or something done. Alternative and optional obligations define a specific subject during production. The relationship is different in that when creating an alternative, there are several items. They can be applied, selected and used.
When the optional method of performing debt recovery, replace the main object with another. In the first case, the responsibility is recognized, which must be performed using one or a different number of actions, but it is possible to refuse to perform them altogether. Suppose a borrower transfers money or returns materials.
Choice
An alternative will not be if the thing is determined. But the lender may choose several options to protect their rights. An example is the elimination of deficiencies after the construction of a house, the reimbursement of expenses for work performed. Separation obligation allows participants to make a choice among several existing options.
Usually, such a determination is transferred to the debtor, but the persons involved can indicate similar conditions in the contract:
- grant the right to the borrower;
- to the lender;
- third party.
Optional obligations in civil law do not provide for the right to choose from several options. In this case, you can only replace one item with another, with one-way operation. It can be performed by the debtor, and the creditor does not even have the right to influence his decision.
They are:
- specific and generic;
- divisible and indivisible.
If the subject of obligations can be divided so that all its properties are preserved, it is considered divisible. This sign is endowed with obligations related to money. When a thing, property or service is not divisible, they belong to the indivisible.
If in legal relations we consider 2 types of duties - the implementation of alternative and optional obligations:
- in the first case, when the actions cannot be objectively performed, the lender makes demands to give what is possible;
- the second option does not provide for other execution if the main obligation is unfulfillable or the deadline for its securing has been reached.
Alternative Terms
The debtor can exercise the right to choose in a certain limited period - it is regulated by the contract or regulatory legal act. If the debtor has not decided on the option of fulfilling duties before the deadline, then the creditor will choose the option of repaying debts.
When there are no installations for the time period, the debtor performs his duties by agreement. It is believed that the borrower made its choice by fulfilling the conditions of the agreement, or notified the creditor in writing, notifying the contents of the conclusion of an additional agreement. The creditor is also endowed with the same right, if the contract has no deadlines for determining the method of fulfillment of obligations. There are 2 different terms - to make a choice and perform work that should not be confused.
Lawyers advise: there should be an essential attribute in the contract
Alternative and optional obligations in civil law accompany sanctions. Without this essential attribute, the obligation will turn into a simple wish. Sanctions are used to enforce agreements. Such a property serves as a coercive measure for a participant who does not perform his duties properly. Suppose a late payment penalty is provided for a credit institution.
There are methods of exposure:
- stimulating - forced to pay debts on time;
- compensation - recover a penalty in the event of adverse effects;
- recovery;
- penalties - punish the debtor.
Punishments differ in character:
- measure of responsibility;
- protective degree.
There are various reasons:
The presence of liability acts on the debtor by a certain measure in case of unfair work. Special conditions are reflected in the agreement. The parties can agree on this in advance or indicate in the documents on the basis of applicable laws.