scholarly journals ITIKAD BAIK DALAM PERJANJIAN JUAL-BELI TANAH MENURUT KUH-PERDATA

2020 ◽  
Vol 2 (2) ◽  
pp. 59
Author(s):  
Ashar Sinilele
Keyword(s):  
Civil Code ◽  
Good Faith ◽  
Implementation Stage ◽  
Land Sale

AbstractArticle 1338 paragraph 3 of the Civil Code, states that an agreement must be carried out in good faith. Good faith when making an agreement means honesty, then good faith in the implementation stage, namely, the agreement is appropriateness, namely an assessment of the behavior of a party in implementing what was agreed. In the sale and purchase agreement, especially the sale and purchase of land, it is hoped that a balance can be created between the two parties concerned, one of which is good faith between each other which is also expected to create a conducive atmosphere. According to article 1362 of the Civil Code and Article 1383 of the Civil Code, there is a difference between the presence or absence of good faith on the party receiving the payment. Article 1360 of the Civil Code, states that whoever, in good faith, has received something that does not have to be paid to him, is obliged to return it with interest and the proceeds, calculated from the payment and thus does not reduce the compensation for costs, losses and interest, if the price is already suffer a slump. If his goods have been destroyed, even though this happens beyond his fault, then he is obliged to pay the price accompanied by compensation for interest, loss and price, unless he can prove that the goods were also destroyed, if he is in the person to whom he should have been given.  Keywords: Agreement, Good Faith, Land, Sale and Purchase. AbstrakPasal 1338 ayat 3 KUH Perdata, menyatakan bahwa suatu perjanjian harus dilaksanakan dengan itikad baik. Itikad baik pada waktu membuat suatu perjanjian berarti kejujuran, maka itikad baik dalam tahap pelaksanaan yaitu, perjanjian adalah kepatutan yaitu suatu penilaian terhadap tindak tanduk suatu pihak dalam hal melaksanakan apa yang diperjanjikan. Dalam perjanjian jual-beli terkhususnya jual-beli tanah sangatlah diharapakan dapat tercipta keseimbangan antar kedua belah pihak yang bersangkutan, salah satunya itikad baik antar sesama yang juga diharapkan dapat tercipta suasana yang kondusif. Menurut pasal 1362 KUH Perdata dan pasal 1383 KUH Perdata dibedakan antara ada atau tidaknya itikad baik dipihak yang menerima pembayaran. Pasal 1360 KUH Perdata, menyatakan bahwa siapa yang dengan itikad baik, telah menerima sesuatu yang tidak harus dibayarkan kepadanya, diwajibkan mengembalikan dengan bunga dan hasil-hasilnya, terhitung dari hasil pembayaran dan demikian itu tidak mengurangi penggantian biaya, rugi dan bunga, jika harganya telah menderita kemerosotan. Jika barangnya telah musnah, meskipun ini terjadi diluar salahnya, maka ia wajib membayar harganya dengan disertai penggantian bunga, rugi dan harga, terkecuali jika ia dapat membuktikan bahwa barang itu musnah juga, seandainya ia berada pada orang kepada siapa ia seharusnya diberikan.Kata Kunci : Itikad Baik, Jual Beli, Perjanjian, Tanah.

scholarly journals TINJAUAN HUKUM TERHADAP ITIKAD BAIK DALAM PERJANJIAN JUAL BELI TANAH

2017 ◽  
Vol 4 (2) ◽  
pp. 75
Author(s):  
Ashar Sinilele
Keyword(s):  
Rule Of Law ◽  
Civil Code ◽  
Good Faith ◽  
The Rule Of Law ◽  
Fair Treatment ◽  
The Law ◽  
Land Sale

In article 1338 of the Civil Code of paragraph 3, namely: "An agreement shall be executed in good faith." A treaty at the commencement of the implementation of the treaty and at the time of execution of the original agreement, especially in the case of land sale agreements, parties who are well-meaning and act honest and compliance with applicable rules, must receive fair treatment and protection of the law by not forgetting the purpose of the rule of law in order to create a balance between the various interests concernedKeywords: good faith, buying and selling landDalam pasal 1338 KUH Perdata ayat 3, yaitu : “Suatu perjanjian harus dilaksanakan dengan itikad baik.” Suatu perjanjian pada waktu dimulainya pemberlakuan perjanjian maupun pada waktu pelaksanaan perjanjian jula-beli terutama dalam hal perjanjian jual-beli tanah, pihak yang beritikad baik dan bertindak jujur serta berkepatuhan akan aturan yang berlaku, haruslah mendapat perlakuan dan perlindungan hukum yang seadil-adilnya dengan tidak melupakan akan tujuan dari peraturan hukum tersebut agar tercipta keseimbangan antara berbagai kepentingan yang bersangkutanKata kunci : itikad baik, jual-beli tanah

MENIMBANG PRINSIP ”DUTY OF CARE”: ‘PEMBELI’ MELAWAN ‘PEMBELI’ DALAM SENGKETA JUAL BELI TANAH

2017 ◽  
Vol 10 (1) ◽  
pp. 99
Author(s):  
Widodo Dwi Putro ◽  
Ahmad Zuhairi
Keyword(s):  
Legal Protection ◽  
Good Faith ◽  
Duty Of Care ◽  
Court Decisions ◽  
Analysis Method ◽  
Legal Standing ◽  
Physical Data ◽  
Agrarian Law ◽  
Land Sale

ABSTRAKSengketa jual beli tanah dalam perkara ini menyeret pihak penjual yang telah menjual objek yang sama kepada dua pembeli dalam dua kali transaksi. Pembeli kedua (penggugat) melayangkan gugatannya terhadap pembeli pertama (tergugat II). Posisi hukumnya dilematis. Kedua pembeli sama-sama merasa mempunyai hak atas tanah sengketa karena telah membeli objek yang sama dari penjual. Untuk membuktikan siapa pembeli yang berhak, hakim perlu mempertimbangkan asas "iktikad baik" (good faith), sebagai dasar untuk menentukan pembeli yang patut mendapat perlindungan hukum. Permasalahannya, kedua pembeli sama-sama mengklaim dirinya adalah pembeli yang beriktikad baik. Sehingga, untuk menilai siapa pembeli yang patut mendapat perlindungan hukum, hakim berpegangan pada prinsip duty of care, dengan mempertimbangkan siapa pembeli yang berhati-hati dan cermat memeriksa data yuridis dan data fisik sebelum dan saat jual beli dilakukan. Prinsip duty of care ini bersifat abstrak, maka metode penulisan yang digunakan, menelusuri dan mengkaji pendapat para ahli hukum perdata dan agraria untuk didialogkan dengan putusan-putusan hakim. Perkembangan putusan-putusan pengadilan mengenai pembeli beriktikad baik yang mengadopsi prinsip duty of care, seharusnya menjadi 'pegangan' para hakim dalam menangani kasus yang serupa, untuk menilai kapan pembeli dikategorikan sebagai pembeli beriktikad baik.Kata kunci: iktikad baik, perlindungan hukum, duty of care, data yuridis dan fisik.ABSTRACTThe dispute of land sale and purchase in this case drag the seller who had sold the same object to two buyers in two transactions. The second buyer (plaintiff) filed a lawsuit against the first buyer (defendant II). Its legal standing created a dilemma. Both buyers felt equally entitled to be the owner of the disputed land, which is the same object purchased from the seller. In providing evidence of the most eligible buyer, the judge should take into consideration the principle of "good faith" as the basis for determining the buyer deserving legal protection. The problem is that both buyers claimed that they were buyers of good faith. Therefore, to appraise which buyer deserving the legal protection, the judges adhered to principle of "duty of care" by taking into account which one of them was carefully and meticulously reading-through the juridical and physical data prior to and during the sale and purchase of the land was conducted. Given the abstract nature of the principle of "duty of care" the analysis method used in this discussion is exploring and studying the opinions of the experts of civil and agrarian law as to be juxtaposed with the decisions of the judges. The development of court decisions related to the issue of good faith buyers adopting the principle of "duty of care" should serve as a reference for the judges in handling similar cases to determine a good faith buyer.Keywords: good faith, legal protection, duty of care, juridical and physical data.

scholarly journals DISPUTES SETTLEMENT OF BALI TRADITIONAL INHERITANCE THROUGH PEACE AGREEMENT

2021 ◽  
Vol 6 (1) ◽  
pp. 16-26
Author(s):  
Anak Agung Istri Agung ◽  
I Nyoman Sukandia
Keyword(s):  
Civil Code ◽  
Good Faith ◽  
Legal Certainty ◽  
Legal Research ◽  
Peace Agreement ◽  
Peace Agreements ◽  
The Law ◽  
Made In

The inheritance and the division of inheritance that is felt to be unfair is often a source of dispute. The disputes that occur can sometimes be resolved by making a peace agreement between the disputing parties. The peace desired by the parties is, of course, expected to end disputes/conflict and to provide legal certainty among those in dispute. However, sometimes peace agreements that have been made between those in dispute are disputed again in court. This study aims to examine the settlement of Balinese traditional inheritance disputes through a binding peace agreement between the parties make it. The method used in this study is a normative legal research, using a statute approach and a case approach. The result of this study showed that the settlement of Balinese indigenous inheritance disputes through a binding peace agreement of the parties that make it if the peace agreement is made based on the validity of the agreement as stipulated in article 1320 of the Civil Code, based on good faith as the principles in the law of the agreement, and must be made in the form of a notary deed is in accordance with the provisions for conciliation in book III of the Civil Code.  

scholarly journals Juridical Review Of Nominee Agreement In Land Of Tenure Property Rights Under The Book Of Civil Law And Agraria

Jurnal Akta ◽  
2018 ◽  
Vol 5 (2) ◽  
pp. 441
Author(s):  
Indah Esti Cahyani ◽  
Aryani Witasari
Keyword(s):  
Property Rights ◽  
Legal System ◽  
Civil Law ◽  
Civil Code ◽  
Good Faith ◽  
Freedom Of Contract ◽  
Related Statement ◽  
The Subject ◽  
The Law ◽  
Legal Consequences

Nominee agreement is an agreement made between someone who by law can not be the subject of rights to certain lands (property rights), in this case that foreigners (WNA) and Indonesian Citizen (citizen), with the intention that the foreigners can master land de facto property rights, but legal-formal (de jure) land property rights are assigned to his Indonesian citizen. The purpose of this paper isto assess the position of the nominee agreement in Indonesia's legal system and the legal consequences arising in terms of the draft Civil Code and the Law on Agrarian. Agreement is an agreement unnamed nominee made based on the principle of freedom of contract and good faith of the parties. However, it should be noted that the law prohibits foreigners make agreements / related statement stock wealth / property (land) for and on behalf of others, sehingga the legal consequences of the agreement is the nominee of the agreement is not legally enforceable because the agreement was made on a false causa.Keywords: Nominee Agreement; Property Rights; Foreigners.

scholarly journals A Reconstruction of the Civil Code Article Based on the Value of Contractual Justice

2020 ◽  
Vol 4 (2) ◽  
pp. 139-147
Author(s):  
Dardiri Hasyim
Keyword(s):  
Civil Code ◽  
Good Faith ◽  
The Will ◽  
Principle Of Proportionality

Justice contracts is essentially the fulfillment of rights and obligations in line with the principle of proportionality by observing the contract process from start to finish. The value of fairness in Contracting is: first, the principle of proportionality, where it governs the exchange of rights and obligations of the parties in accordance with proportion or part thereof; second, the principle of consensualism, in which it governs the agreement of both sides. The agreement is a conformity between the will and the statements made by the parties, so that legally an agreement can be held accountable; and third, the principle of freedom, in which it governs the freedom of a person in making a contract accompanied by good faith. Meanwhile, there are 9 (nine) chapters in the book III Civil Code of the partnership requiring the reconstruction of chapters.

FUNDAMENTALS OF THE THEORY OF PRE-CONTRACTUAL LIABILITY

2021 ◽  
pp. 148-161
Author(s):  
Alesya V. Demkina ◽  
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Negotiation Process ◽  
Point Of View ◽  
Good Faith ◽  
The Other ◽  
Legitimate Interests ◽  
The Subject ◽  
The Russian Federation ◽  
Special Rules

The article deals with the relatively new rules of Art. 434.1 the Civil Code of the Russian Federation on the conduct of negotiations. Taking into account the current wording of the said rule and the experience of foreign legislation on pre-contractual liability, the article argues for different theories justifying the nature of pre-contractual legal relations and liability and gives different positions of the authors on this issue. Proceeding from the doctrinal concept of obligation and characteristics of pre-contractual relations themselves the conclusion is made that these relations, firstly, are regulated by law and, secondly, they are not simply a legal relation but an obligation. It is based on certain actions of the negotiating partners that give rise to such an obliga-tion. As such, any action that is sufficiently certain (in some cases it may be required by law) and expresses the intention of the person to regard himself as negotiating with the addressee, who will in return perform the same sufficiently certain action, can be regarded as such. The specified characteristics of an action allow us to conclude that, from the point of view of classification of legal facts, this action is an act (because it is performed with a certain in-tention evident to other participants of civil turnover) and, moreover, it is also a transaction. Special rules of the Civil Code of the Russian Federation stipulate that the actions performed to enter into negotiations (for example, if the conclusion of a contract is binding on one party) or the actions of both partners entail legal consequences - the obligation to negotiate in good faith. The analysis of these legal relationships identifies three stages in their development, charac-terises them and attempts to answer more precisely the question of who can be a participant in the negotiation process depending on the stage of the negotiation process. The subject matter of an obligation arising during pre-contractual contacts will be actions aimed at negotiating and concluding a contract. The content of the obligation arising in the course of pre-contractual contacts, based on Art. 434.1 of the Civil Code will be the obligation to negotiate in good faith (paragraph 2 of the above rule). Assuming that the legislator provides an indicative list of actions that should fall within the scope of bad faith conduct, an indicative list of the "standard" of good faith conduct at the negotiation stage is given. This includes the obligation to provide full and truthful information to a party, including the reporting of circumstances that, due to the nature of the contract, must be brought to the attention of the other party (e.g. in a sale, all encumbrances on the subject of the contract must be reported). In addition, persons are obliged to negotiate only if they intend to conclude a contract, not to terminate negotiations suddenly and unjustifiably, and to take into account the rights and legitimate interests of the other party to the negotiation. The obligation under this obligation may also include a requirement not to disclose infor-mation obtained during the negotiation of the contract.

scholarly journals The principle of good faith and fair dealing in English contract law

Pravovedenie ◽  
2020 ◽  
Vol 64 (3) ◽  
pp. 312-325
Author(s):  
Jan Halberda ◽  
Keyword(s):  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
Good Faith ◽  
Traditional View ◽  
Comparative Approach ◽  
England And Wales ◽  
Fair Dealing ◽  
Objective Sense ◽  
English Law

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

scholarly journals Ganti Kerugian Berdasarkan Perjanjian Antara Pengembang Perumahan dengan Konsumen di Atas Tanah Rawan Banjir

Wajah Hukum ◽  
2020 ◽  
Vol 4 (1) ◽  
pp. 136
Author(s):  
Supeno Supeno
Keyword(s):  
Critical Thinking ◽  
Rainy Season ◽  
Civil Code ◽  
Good Faith ◽  
Legal Basis ◽  
Residential Land ◽  
Regulatory Approach ◽  
The Law

The purpose of this study is to give critical thinking to the housing developers who build housing in a flood area that impacts the consumer. The study is based on the incidence of residential land that has flooded in the rainy season, the study was peeled with the prevailing regulatory approach. Results show that the developer's obligation has not been included to compensate the consumer in agreement between the developer and the consumer in case of flooding in residential prone to flood so consumers suffer losses, it is not a state of force (force majeur) because to be said in a state of forced (force majeur) must fulfill the elements of article 1244 Civil Code. To provide the protection of the law for consumers, from the beginning of the agreement must be stated that the housing purchased by consumers is in a safe location of flooding, so that if there is a flood of consumers have a strong legal basis to demand developers. Residential developers must have good faith to carry out the agreements that have been made including compensation in the event of a flood.

scholarly journals The Principle of Good Faith in the Palestinian Civil Code Draft and Its Role in Maintaining Economic Contractual Equilibrium at the Pre-Contracting Phase

2019 ◽  
Vol 12 (3) ◽  
pp. 113
Author(s):  
Osama Ismail Mohammad Amayreh ◽  
Izura Masdina Mohamed Zakri ◽  
Pardis Moslemzadeh Tehrani ◽  
Yousef Mohammad Shandi
Keyword(s):  
Civil Code ◽  
Good Faith ◽  
Tort Liability ◽  
Legal Basis ◽  
Bad Faith ◽  
Legal Provisions ◽  
The Subject ◽  
Contracting Phase ◽  
The Stability ◽  
Definition Of

The jurisprudential and judicial legal trend tends to apply the principle of good faith at the pre-contracting phase as one of the most substantial principles governing this phase, since it is inconceivable that the parties are to negotiate in bad faith, and then must implement the contract in good faith, in accordance with the traditional legal rule that “fraud spoils everything it touches”. However, the Palestinian legislature has ignored enacting legal provisions obliging the parties to abide by the principle of good faith in the pre-contracting phase causing a legislative deficiency in the legislative remedies of the subject of good faith in the pre-contracting phase. This paper seeks to prove that replacing a provision that requires good faith in negotiations with the provisions of tort liability causes many legal problems. To prove this, the legal provisions should be analysed which would also include determining the definition of the principle of good faith, and the function of that principle in achieving contractual equilibrium and the legal basis for this principle at the stage of negotiation which should also be analysed. Moreover, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the need to legislate a legal article which obligates the negotiating parties to behave in good faith, as this has become an unavoidable reality that should be dealt with to contribute to the stability of civil and commercial transactions. As such, the legal article should also specify the compensation to be claimed.

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