World Applied Sciences Journal 30 (10): 1214-1217, 2014

ISSN 1818-4952
© IDOSI Publications, 2014
DOI: 10.5829/idosi.wasj.2014.30.10.14149

Facultative Obligation Construction

Anna Vladimirovna Zakharkina

Perm Institute of Economics and Finance, Perm, Russia

Abstract: The article is devoted to the complex research of the civil and legal construction of the facultative
obligation. Thanks to the facultative obligation construction the debtor receives a chance to escape from the
obligation by providing the creditor with a substitution and this significantly reduces the risk of liability of the
debtor for failure to perform the obligations or the improper obligation fulfillment. The facultative obligations
are not defined in the current Russian Federation legislation. The mentioned circumstances prove the extreme
significance of the facultative obligation research. The absence of the facultative obligation complex regulation
in Russian legislation is largely caused by the poor research of these obligations. The author comes to the
conclusion that an facultative obligation is an independent civil and legal category. In connection with that,
it is necessary to fix the legal definition of the facultative obligation and its legal status in the civil legislation
of the Russian Federation.

Key words: Facultative obligation Obligation construction Civil law Legal category

INTRODUCTION the purpose of simplifying the payment-in facultate

It is a known fact that there are no general rules of
facultative obligations in the Civil Code of the Russian
Federation. The analysis of the draft new edition of Part
I of the Russian Federation Civil Code shows that the
developers of the civil legislation reforms find it necessary
to close the gap.
The justification of the necessity to research the
facultative obligation institution was given by O. S Ioffe
who thought that “the absence of express indication to
the facultative obligation in the law does not mean their
absence in reality, because our law does not follow the
rule to determine only those obligations that are directly
mentioned in it” [9, p. 93]. Modern researches have the
same attitude.
Facultative obligation concept development in the
history of the civil theory We shall first mention that the
Russian legal science borrowed the facultative obligation
category from the Roman law [16, 29].
One of the first to study the facultative obligation in
the domestic science was V. I. Golevinsky, who opposed
the “complicated dividing” (alternative) obligations to
“complicated replacing” (facultative) obligations, where
“from the two satisfactions…, only one is the chief
subject of the obligation and the other one is chosen for
solutionis; consequently, the chief subject of the
obligation can be replaced with another one and so such
an obligation is called the replacing one, obligatio
facultative” [5, p. 210].
To develop the reasoning by V.I. Golevinsky, D.I.
Azarevich noticed that the replacing obligations are “such
obligations which have only one action in their subject,
refer to one thing, but giving the debtor a right to
compensate for this thing with another thing. The same
right, i.e. the right referring to the claim, is given to the
creditor. In such cases we see una res in obligatione, et
altera in facultate solutionis, i.e. one certain thing is
placed under obligation but it can be compensated for
with another thing” [2, p. 63].
In V.V. Ephimov opinion, facultas alternativa
...takes place when the debtor is to perform one certain
action, but with this he can replace one action or one
thing with another action or thing [8, p. 162].
From the point of view of L. N. Zagursky, it is
obvious that “…not the obligation is facultative, but
giving another thing as a payment instead of the one
which is a chief subject of the obligation” [9, p. 38].
In the abstracts of the obligation law lectures by
Professor P.P. Tcytovich it is mentioned that “We need to
differentiate between the alternativeness (aut-aut) and

Corresponding Author: Zakharkina, Perm Institute of Economics and Finance, 141, Bol'shevistskaja St., 614000, Perm, Russia .

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 World Appl. Sci. J., 30 (10): 1214-1217, 2014
facultas solvendi: the subject of the obligation is the same
and actio è exactio can be aimed at this subject only; but
the debtor can optionally replace the obligation subject
with something else: “payment of the forfeit closes…”,
difference deals and so on. This facultas is not cancelled
even after the court decision is made; it can be performed
also when enforcing the court decision” [14, p. 17].
G.F. Shershevevich gave the following example of the
facultative obligation: the obligation from the
testamentary renunciation where the heritor is obliged to
“transfer the “Peter I” steamship…on the condition that
the steamship transfer can be replaced with paying an
equal sum of money” [15, p. 461]. Similar examples were
given by K.N. Annenkov, V.I. Sinaysky, V.A.
Ryazanovsky. I.N. Trepitsin describes the following
example of the facultative obligation: “I promise to grant
an apartment, but retain the right to replace it with paying
such-and-such sum of money” [13, p. 52].
V.I. Sinaysky thought that both the facultative
obligation and alternative obligation have several agreed
actions, but the impossibility to perform the main action
releases from performing all the other actions agreed as
the main action replacements.
Some of the authors deny the existence of the
facultative obligations. For example, S.I. Landkof rejected
the necessity to define the facultative obligation as a
separate type of obligations, because the facultative
obligation, in his opinion, does not differ from the
alternative one [11, p. 118].
Soviet legal theorists had two opposite positions
about the understanding of the facultative obligations.
Some of them adhered to the classical understanding of
this civil legal phenomenon, having added nothing new
into the research of it. Others preferred not to mention the
facultative obligations at all, having replaced the
information about them with the characteristics of the
replacement institution and (not always) the institution of
granting for the execution purposes.
V.A. Oygenzihkt tried to prove that facultative
obligation is an individual case of the alternative
obligation [12, p. 5-13]. Although his position can hardly
be recognized as a reasoned one.
In opinion of O.S. Ioffe, “in the facultative obligation,
the debtor is given the right to replace the subject to be
performed with another subject agreed in advance” [10, p.
93].
Facultative obligation construction in the works of
modern Russian legal theorists Modern legal theorists are
not sufficiently attentive to the facultative obligations [23,
25, 26]. The definitions of this civil legal phenomenon are
mostly met in the textbooks.
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The facultative obligations are obligations that have
a single execution subject, although the debtor has the
right to replace it with another subject agreed in advance.
As the subject that can be used for the replacing the
principal obligation is agreed in advance, the creditor’s
agreement to the replacement is not required. For example,
if the terms of agreement allow the debtor to transfer at his
own will either 1 ton of granulated sugar or the raw sugar
in quantity enough to produce 1 ton of granulated sugar,
the obligation can be deemed as optional.
In facultative obligation (lat. facultas- ability ,
possibility , i.e. optionality) the debtor is to perform
a specific action for the benefit of the creditor, but he
also has the right to replace the performing with other
subject agreed in advance. For example, the
contractor who did the work with defects, is to repair
the defects, but has the right to do instead the whole
work again free of charge, having compensated the
customer for the losses due to the downtime and the
delay in execution (item 2 of Article 723 of the Civil
Code). Consequently, the subject of the execution is
properly determined but the debtor at his choice (will)
can replace it with another subject [6, p. 223].
The difference of the facultative obligation from the
alternative obligation is “…in the fact that the debtor does
not have the right of choice-he is forced to replace the
execution subject, although defined in advance. With this,
the replacement of the execution subject is allowed only
if the impossibility to execute the originally stated subject
is proved...” [7, p. 602].
E. Bogdanova views the facultative obligation in the
following way: There is the only obligation subject in the
facultative obligations. But the debtor has the right to
replace the execution subject with another subject
stipulated in the contract. Thus, the debtor can make the
replacement of the execution subject with another subject
or to perform a defined action at his own will, not asking
for the creditor’s permission for the replacement, however
he also has the right not to do it [3, p. 56].
Explaining the general provisions of the Concept for
the Civil Legislation reforming, V.V. Vitryansky
reasonably notices that “apart from the alternative
obligation, where the debtor is to perform one of the two
equivalent obligations, the facultative obligation has a
single obligation but the debtor has the right to replace it
with another obligation and if the debtor practices his
right the creditor is to accept the execution of other
(replacing) obligation proposed by the debtor as a proper
fulfillment of the facultative obligation” [4, p. 13].
 World Appl. Sci. J., 30 (10): 1214-1217, 2014
Let us see the normative regulation of the facultative
obligations in the legislations of the foreign countries [18,
19, 21, 22, 24, 27, 28]. Thus, Article 1552 of the Quebec
Cicil Code, directly defines that the facultative obligation
is the obligation with a singular principal execution
subject and the debtor can avoid performing it be
providing with another subject of execution.
Correlation between the facultative obligation and
neighboring civil legal constructions
The number of the civil and legal categories which are
subject to comparing with the facultative obligations is
rather limited: replacement of the execution, granting for
execution purpose, compensation and innovation.
Facultative Obligation and Replacement of Execution.
Professor M.M. Agarkov was the first to speak about the
differences between the difference between the facultative
obligation, replacement of execution and granting for
execution purpose. He noted that “in case of the
execution replacement, the debtor, commits another action
instead of the action that he was supposed to perform.
The replacement of the execution is the substitute for the
execution… (and) makes the same action as the execution
itself. The debtor having performed a replacing action
with the creditor’s consent is considered to be the one
having fulfilled the obligation” [1].
The classics of the Russian civil science thought that
the main difference between the facultative obligations
and the replacement of execution is in availability or in
absence of the debtor’s right for such granting [17]. If the
obligations allow the debtor to have such a right, then we
speak about the facultative obligation. In case the debtor
does not have the right, i.e. he is to ask the creditor to
accept the subject proposed by him-then we speak about
the replacement of the execution.
Facultative Obligation and Granting for Execution
Purposes. Speaking about granting for the purpose of
execution, M.M. Agarkov said: “… Suppose the debtor,
instead of paying the debt, has granted the creditor with
a thing approved by the creditor, so that is the creditor
sells this thing and takes the debt sum from the revenue
sum. Such granting of the thing to the creditor is not a
replacement of the execution, it is aimed at the execution
only. The debt will be paid not at the moment of the thing
transfer, but at the moment when the creditor gets money
for the thing” [1, p. 36].
The difference between the facultative obligation and
granting for execution is obvious: in the facultative
obligation, when the execution is replaced, the obligation
finishes with the acceptance act (certificate) for the
replacing subject and when it is granted for the execution-
the creditor’s act is issued for accepting the revenue for
the subject sale.
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Facultative Obligation and Compensation. The most
vivid opponent of the compensation agreement as the
grounds for introducing the facultative element into the
obligation was O.Y. Shilokhvost, who in particular noted
that the replacement subject in the facultative legislation
should be defined in advance and the compensation
agreements are often concluded “…when the deadline for
the original obligation is missed and the debtor is
experiencing a delay” [20].
Facultative Obligation and Innovation Agreement.
The difference between the innovation agreement and the
agreement on compensation is first of all in their direct
purpose. The purpose of the agreement on compensation
is to agree on such a termination of the known obligation
as providing for the compensation-replacing its execution.
The innovation agreement has the purpose of cancelling
the known obligation by the very fact if its conclusion.
CONCLUSIONS
We need to note that the facultative obligation is an
independent civil legal phenomenon.
The discovered characteristics of the facultative
obligations allow to formulate the definition of the
facultative obligation. The facultative obligation is an
obligation having a defined subject of execution and
characterized by the fact that its contents are complicated
with the right of the debtor to make a replacement of the
chief subject of the obligation.
We deem it necessary to provide for a legal definition
of the facultative obligation in the civil legislation of the
Russian Federation: the facultative obligation is an
obligation that gives the right to the debtor to replace the
mail execution with other (optional) execution agreed in
the obligation terms.
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4. Vitryansky, V.V., 2011. Some of the Issues of the
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Development of the Principal Ideas of the Russian
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