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 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 PENERAPAN ASAS KONSENSUALISME DALAM PERJANJIAN JUAL BELI ONLINE

2020 ◽  
Vol 8 (8) ◽  
pp. 1138
Author(s):  
Ni Putu Ayu Bunga Sasmita ◽  
I Wayan Novy Purwanto
Keyword(s):  
Research Methods ◽  
Legal Aspects ◽  
Civil Code ◽  
Legal Basis ◽  
Legal Research ◽  
Electronic Transactions ◽  
Online Trading ◽  
The Law ◽  
The Republic

Penelitian ini bertujuan untukemahami bagaimanakah pengaturan jual beli online dalam hukum di Indonesia dan bagaimanakah aspek hukum jual beli secara online dalam perjanjian.  Penelitian ini, menggunakan metode penelitian hukum normatif. Sedangkan pendekatan yang digunakan adalah menggunakan pendekatan fakta dan statute approach. Hasil penelitian ini menunjukan bahwa pengaturan mengenai jual beli secara online diatur dalam ketentuan Pasal 18 ayat (1) Undang-Undang Republik Indonesia Nomor 19 Tahun 2016 tentang Perubahan Atas Undang-Undang Nomor 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik, yang mana sebagai penerapan pasal 1313 KUHPerdata. Para pihak yang mengadakan perjanjian bisa menerapkan KUHPerdata yang jadi dasar diakui sahnya perjanjian dimana keabsahannya tercantum syarat 1320 KUHPerdata yakni:   kecakapan, kesepakatan, suatu sebab yang halal dan suatu hal tertentu.Sedangkan penerapan asas Konsensualisme dalam perjanjian online yang didasarkan oleh ketentuan dalam Pasal 1313 KUHPerdata yang menegaskan bahwa adanya suatu perjanjian berarti pihak satu dengan pihak lainnya setuju untuk mengikatkan dirinya.   This study aims to understand how the online arrangement in the sale and purchase agreement and how the legal aspects of buying and selling online in the agreement. This research uses normative legal research methods. While the approach used is to use the fact approach and statute approach. The results of this study indicate that the regulation regarding online trading is regulated in the provisions of Article 18 paragraph (1) of the Law of the Republic of Indonesia Number 19 of 2016 concerning Amendment to Law Number 11 of 2008 concerning Information and Electronic Transactions, which is the legal basis for applying article 1313 of the Civil Code. The parties who entered into the agreement can apply the KUHPer which is the basis for the validity of the agreement where the validity is stated in the terms of the 1320 KUHPer, namely: skill, agreement, a halal cause and a certain thing. While the application of the principle of consensualism in an online agreement based on the provisions in Article 1313 of the KUHPer which confirms that an agreement means that one party with another party agrees to bind themselves.

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.

scholarly journals Legal Relations and Responsibilities between Grantor and Grantee of Director’s Attorney in the Implementation of Procurement of Government Goods and/ or Services (Study of the Decision of the Mataram District Court Number: 33/PID.SUS.TPK/2015/PN.MTR)

2019 ◽  
Vol 6 (3) ◽  
pp. 13
Author(s):  
Dewi Agustina ◽  
Zainal Asikin ◽  
Kurniawan Kurniawan
Keyword(s):  
Civil Code ◽  
Good Faith ◽  
District Court ◽  
Normative Study ◽  
Legal Requirements ◽  
Research Results ◽  
The Law

This study aims to determine the legal relations between grantor and grantees of director’s attorney in the procurement of goods/ services based on the decision of the Mataram District Court Number: 33/PID.SUS.TPK/2015/PN.MTR. This study is a normative study that uses legislative, case, and conceptual approaches and uses primary and secondary legal materials. The research results lead to one conclusion. If it is associated with Article 1338 and 1320 of the Civil Code, legal relations between grantor and grantee of director’s attorney are created when they have agreed to enter into an agreement. However, the agreement they made is not necessarily considered valid because the agreement of the director's attorney made by the two defendants including the nominee agreement in the procurement of government goods/ services is a matter which is not allowed to be carried out by business actors as the provider; moreover, it can be considered as an attempt to smuggle the law because it is considered not to fulfill one of the legal requirements of the agreement namely the existence of a cause or causal that is lawful and considered to be contrary to the principle of good faith in the agreement. Thus, the agreement of the director’s attorney made by the two defendants is null and void.

Buna-credință în legislația din Quebec

2021 ◽  
Vol 2021 (2021) ◽  
pp. 9-18
Author(s):  
Anne GRÉGOIRE ◽  
Keyword(s):  
Civil Code ◽  
The State ◽  
Good Faith ◽  
The Common ◽  
The Law ◽  
The University

During the Quebec-Romania bilateral days held as part of the celebrations of the 160th anniversary of the Faculty of Law of the University of Bucharest, the speakers were invited to present the state of the law in their respective jurisdictions based on the common French root. Good faith was codified in the French Civil Code in art. 1134 C.N., a codification that was not repeated until 1994 in Quebec. Despite this lack of codification, the courts, influenced by French doctrine, began to recognize the importance and the various components of the concept of good faith in contract as of the 1980s. This text explains the developments of good faith in Quebec law, as well as the limits to it.

scholarly journals Legal features of the regulatory function of the principle of good faith

2021 ◽  
pp. 158-165
Author(s):  
I. E. Mikheeva
Keyword(s):  
Rule Of Law ◽  
Civil Code ◽  
Good Faith ◽  
Regulatory Function ◽  
The Law ◽  
Law Making

The author analyzes the application of the principle of good faith by courts when considering disputes as a rule of law The article concludes that since good faith is an evaluative concept, there are no criteria for it in the law, when applying the principle of good faith by courts, it is necessary to specify and clarify the criteria of good faith for the consideration of specifi c disputes. Courts form rules, in some cases different from the rules established by the law, after which they are widely applied as rules of law. The paper concludes that the recognition of the possibility of applying the principles of law as norms of law determines the appearance of the law- making role of courts. The article concludes that liability under article 10 of the civil code for violation of the principle of good faith also indicates the possibility of applying the principle of good faith as a rule of law.

scholarly journals Implementation of the Doctrine of Good Faith (Bona Fides) in Corporate Legal Relations

2020 ◽  
Vol 1 (12) ◽  
pp. 70-80
Author(s):  
Yu. V. Brisov
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Civil Code ◽  
Good Faith ◽  
Corporate Ethics ◽  
The Supreme Court ◽  
The Usa ◽  
The Russian Federation ◽  
The Law

Good faith (bona fides) is presented in the Civil Code of the Russian Federation as a general principle and presumption. In resolving corporate disputes, the courts are governed by general principles of good faith. However, corporate relations have a specificity due to, inter alia, the variety of corporate forms. It can be assumed that the application of good faith provisions should also vary taking into account the characteristics of corporate patterns, the types and forms of corporate relations, subjective internal corporate circumstances. Common law countries have developed a system of good faith elements and special tests to apply the required requirement of good faith according to the context. A special place is given to fiduciary relations as a product of bona fides. The author has carried out a comparative analysis of the provisions of the Plenums of the Supreme Court of the Russian Federation, the Supreme Court of the Russian Federation and the law enforcement practice of Germany, the USA, Great Britain and Canada on the issues of good faith in the consideration of corporate disputes. Special attention is paid to the interrelation between corporate ethics and law. Examining a number of key cases from the law-enforcement practice of the courts of the Anglo-American system of law, the author substantiates the possibility of applying special tests, namely, objective and subjective good faith tests, to regulate matters related to the application of the rules of good faith from the Civil Code and special laws in dealing with corporate disputes. Special attention is paid to the role of courts and permissible discretion in the formation of standards of enforcement of blanket norms and general principles of law in corporate relations.

IMPLEMENTATION OF THE BORROWER-PAYS PRINCIPLE AND THE PRINCIPLE OF GOOD FAITH IN LENDING TO BORROWERS

2019 ◽  
pp. 93-97
Author(s):  
I. E. MIKHEEVA
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Good Faith ◽  
Bad Faith ◽  
Interest Payment ◽  
The Russian Federation ◽  
The Law ◽  
Special Rules

The article considers the interrelation between the borrower-pays principle and the principle of good faith in lending to borrowers on the example of interest payment by borrowers and other payments under the loan agreement. The author analyzes the specificity of the principle of good faith when establishing, changing and collecting interest for the use of the loan and other payments under the loan agreement. The article concludes that the law does not contain special rules regulating the behavior of the creditor in the establishment and change of interest for the use of the loan and other payments, in this connection the provisions of the Civil Code of the Russian Federation on inadmissibility of unfair conduct of the parties should be applied. Taking into account that the provisions of the Civil Code of the Russian Federation concerning good faith of the parties are evaluative in nature, the author on the basis of court jurisprudence identified cases of bad faith behavior of the creditor when establishing or changing the interest charged for the use of the loan and other payments. The article also defines the influence of the ratio between the borrower-pays principle payment and good faith concerning the forms and methods of protection of the rights of the borrower and improvement of the legislation on payment of interest and other payments.

The Anatomy of the New French Law of Contract

2017 ◽  
Vol 13 (4) ◽  
Author(s):  
Genevieve Helleringer
Keyword(s):  
Contract Law ◽  
Civil Code ◽  
Good Faith ◽  
Actual State ◽  
French Law ◽  
Freedom Of Contract ◽  
Binding Force ◽  
The Law ◽  
Accurate Reflection

AbstractSince their enactment in 1804 as part of the French civil Code, the provisions relating to contract law had, until recently, remained almost untouched. That is not to say that the law of contract had not altered, but rather that the text of the Code was no longer an accurate reflection of the actual state of the law as interpreted by the courts. An extensively restructured and modernized version came into force on 1st October 2016. In an attempt to map the new French law of contract, this paper first seeks to evaluate the robustness of the guiding principles set out in the Code. By analysing how these principles are applied to the formation, interpretation and enforcement of contracts, the paper concludes that freedom of contract and good faith emerge strengthened by the reforms, while the binding force of contract has become more qualified. The paper also highlights the existence of less obvious but important trends relating to the parties’ behaviour and to the role of the judge. It demonstrates how unilateralism, anticipation, and equity are implicit core ideas lying behind many of the new rules.

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