Cancellation Standard of Agreements Based on the Doctrine of Undue Influence in Court Verdicts

The doctrine of undue influnce has now become one of the new grounds of will defect to cancel the agreement or contract in the court’s practices. Undue influence as a condition of will defect is not set out in the Civil Code. This study discusses the cancellation standard of the agreement due to a defect of will be based on the doctrine of undue influence in the court judgments. The research method is a normative juridical through several approaches: doctrinal approach and theoretical approach that are associated with secondary data in the form of statutory provisions, and court verdicts relating to the legal problems. The results of the study found that the court verdicts to cancel the agreement based on the doctrine of undue influnce is occurs due to two main factors: the economic excellence factor and the psychiatric excellence factor. Several elements used to see the event are (1) the existence of a special circumstance, (2) a real thing, (3) abuse of circumstance, and (4) causal relationship. It can be concluded that undue influence doctrine is contrary to the principle of justice, the principle of freedom of contract, the principle of consensus, the principle of good faith, as well as the principles of decency and habit. It’s recommended to form a legal norm in the Civil Code. The doctrine of undue influence should also be specified to limited circumstances of pre-contract, after execution of the contract, or because of a real loss for either the involved parties.

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

Jurnal Akta ◽

10.30659/akta.v5i2.3100 ◽

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.

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Kajian Yuridis Pengesampingan Pasal 1266 dan Pasal 1267 Kitab Undang-Undang Hukum Perdata Sebagai Syarat Batal Dalam Perjanjian Kredit Perbankan

DIVERSI Jurnal Hukum ◽

10.32503/diversi.v3i1.157 ◽

2018 ◽

Vol 3 (1) ◽

pp. 70

Author(s):

Rocky Marciano Ambar ◽

Budi Santoso ◽

Hanif Nur Widhiyanti

Keyword(s):

Banking System ◽

Civil Code ◽

Legal Rights ◽

Economic Gain ◽

Dominant Position ◽

Freedom Of Contract ◽

Principle Of Justice ◽

Credit Agreement ◽

The Right ◽

Banking Credit

Banks in the redit agreement use more standardized credit agreements, the use of standard contracts in the banking credit agreement is based on 2 (two) things, (1) The existence of unbalanced position (berganing position) between banks and the debtor, the bank has a more dominant position than the debtor. (2) There is an understanding of the principle of freedom of contract absolutely and indefinitely so that the bank has absolute freedom to determine the form and content of the agreement. So banks can freely to determine the form and contents of the agreement included in the clause of the terms of void wanprestasi arranged to include mengesaampinkan Article 1266 and Article 1267 Civil Code in the agreement. Whereas the provision of Article 1266 of the Civil Code provides that in the event that the revocation of the treaty must be requested by the court and the judge through the decision of the court may determine the types of compensation for the parties. Based on the background, then as for the formulation of the problem of writing is (1). Whether the inclusion of clause 1266 and Article 1267 of the Civil Code in the credit agreement of the banking system has fulfilled the principle of equilibrium and justice. (2) What is the juridical implication of the inclusion of clauses which exclude Article 1266 and Article 1267 of the Civil Code in the credit agreement pertaining to the debtor's right in the process of settling the interpretation as a condition of cancellation of the agreement. The research method used is normative juridical research. The result of this research is the waiver of Article 1266 and Article 1267 of the Civil Code which regulates the waiprestasi void in the agreement and the types of indemnity is contrary to the principle of fairness and the principle of equilibrium. The principle of justice according to Rawls is that it is unfair to sacrifice the right of one or more persons only for the sake of greater economic gain and even justice must be understood as fairness, in the sense of "equality of positions and rights" not in the sense of "commonality of results" people, in other words justice as intended is justice that provides a guarantee of equality and rights between the bank as a creditor with the customer as a debtor in the credit agreement of the bank. As for the juridical implication of the inclusion of clauses that exclude Article 1266 and Article 1267 of the Civil Code of credit agreement relating to the debtor's right in the process of settling the interpretation as a condition is to remove the legal rights as well as the debtor's legal efforts in seeking justice and the equilibrium position which is not dominant by the decision maker due to the unbounded imbalance of the parties to the agreement. The act of wanprestation brings consequences to the adversity of the disadvantaged party to prosecute the defendant to indemnify, so that by law it is expected that none of the parties will be harmed by the default.

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UNDUE INFLUENCE SEBAGAI FAKTOR PENYEBAB CACAT KEHENDAK DILUAR KUHPERDATA, DALAM UPAYA MENGISI KEKOSONGAN HUKUM

LITIGASI ◽

10.23969/litigasi.v17i1.97 ◽

2016 ◽

Vol 17 (1) ◽

Author(s):

N. Ike Kusmiati

Keyword(s):

Contract Law ◽

Civil Code ◽

The State ◽

Undue Influence ◽

Freedom Of Contract ◽

Opposing Party ◽

Bargaining Position ◽

The Will ◽

The Government ◽

The Relationship

Not to misuse the regulation of the state as the factor that causes defects in the will of the Indonesian Civil Code, should be anticipated for the development of contract occurs so fast in practice. The convergence of an agreement in the form of rapprochement will of the parties, no longer occur in a balanced manner, because there are elements that influence the parties, both economically and psychologically, whereby the economically strong dominate the contract even harm the opposing party, so the contract applies biased, unfair and inappropriate. Therefore, the government needs to intervene to protect the weaker party. It was felt important need for inclusion of the substance abuse situation as a factor that will cause defects arising from Jurisprudence in the Netherlands as the fourth element, in addition to oversight, coercion and deception that has been set out in Article 1321 of the Civil Code. It is therefore necessary to be examined how the relationship between the abuse of state as the factor that causes the will deform against the abuse of contracts and how to position the state as a factor that causes defects will fill the void in the legal system of contract law in Indonesia. The results showed that the state of relationship abuse as factors that led to the agreement will deform, relevant because the agreement occur with the agreement, and to the agreed required the conformity of the will of the parties. For that agreement became the basis for the validity of the contract. But with the misuse of state in the contract raises the contract it becomes irrevocable, because conformity of his will are not met, while the position of the abuse of the state as the factor that causes a defect will in fill the legal vacuum in the system of contract law in Indonesia, it is very important, where in addition there is no setting in Indonesia, also the case in practice. The parties to a contract are often cornered by the interests of one party, so that the opposing party gives consent with full conviction, because it does not have the bargaining power is balanced, often one of the parties has a weak bargaining position, caused by the influence of the economic position and psychiatric one parties, so we need government intervention to oversee the implementation of the freedom of contract in practice, and making rules coercive. Keywords: Abuse of state; Disability Will; Contracts

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INFORMED CONSENT DOKTER DAN PASIEN BERDASARKAN ASAS GOOD FAITH

Jurnal Panji Keadilan : Jurnal Ilmiah Nasional Mahasiswa Hukum ◽

10.36085/jpk.v3i1.1185 ◽

2020 ◽

Vol 3 (1) ◽

pp. 124-144

Author(s):

Yenni Safitri

Keyword(s):

Data Analysis ◽

Informed Consent ◽

Research Method ◽

Research Study ◽

Civil Code ◽

Good Faith ◽

Legal Research ◽

Sense Of Security ◽

The Right ◽

Legal Consequences

ABSTRAKPerjanjian informed consent harus dilaksanakan dengan asas itikad baik. Asas ini merupakan asas bahwa para pihak, yaitu pihak kreditur dan debitur harus melaksanakan substansi kontrak berdasarkan kepercayaan atau keyakinan yang teguh maupun kemauan baik dari para pihak. Tulisan ini membahas informed consent Dokter dan Pasien berdasarkan asas Good Faith dan akibat hukum tidak dilaksanakannya informed consent Dokter dan Pasien berdasarkan asas Good Faith. Metode penelitian adalah penelitian hukum normative kajian tentang asas hukum, peneliti mengumpulkan data yang terdiri dari data primer, sekunder dan tertier. Teknik pengumpulan data yaitu wawancara dan kajian kepustakaan. Analisis data dilakukan secara kualitatif serta menarik kesimpulan penulis menggunakan metode berfikir deduktif.Kesimpulan dari penelitian ini adalah Informed consent antara dokter dan pasien harus berdasarkan asas good faith, bagi dokter informed consent memberikan rasa aman dalam menjalankan tindakan medis terhadap pasien. Bagi pasien, informed consent merupakan merupakan perwujudan dari hak pasien dimana pasien berhak mendapatkan informasi tentang penyakit yang dideritanya, tindakan medis apa yang hendak dilakukan, kemungkinan yang akan terjadi atas pengambilan keputusan tindakan medis. Apabila tidak ada informed consent berakibat tidak terpenuhinya salah satu syarat perjanjian menurut Pasal 1320 KUH Perdata, digolongkan sebagai wanprestasi dan digolongkan sebagai perbuatan melawan hukum berdasarkan Pasal 1365 KUHPerdata.Kata kunci: informed consent; good faith; dokter dan pasienABSTRACTAn informed consent agreement must be carried out in good faith. This principle is the principle that the parties, namely the creditors and debtors must carry out the substance of the contract based on the trust or firm belief or goodwill of the parties. This paper discusses the informed consent of Doctors and Patients based on the Good Faith principle and the legal consequences of not implementing the informed consent of Doctors and Patients based on the Good Faith principle. The research method is a normative legal research study of the principle of law, researchers collect data consisting of primary, secondary and tertiary data. Data collection techniques, namely interviews and literature review. Data analysis was carried out qualitatively and drawing conclusions from the author using deductive thinking methods. The conclusion of this study is that informed consent between doctors and patients must be based on the principle of good faith, for physicians informed consent to provide a sense of security in carrying out medical actions against patients. For patients, informed consent is an embodiment of the patient's right where the patient has the right to get information about the disease he is suffering from, what medical action he wants to take, the likelihood that will occur in making a decision on medical action. If no informed consent results in failure to fulfill one of the terms of the agreement under Article 1320 of the Civil Code, it is classified as a default and is classified as unlawful pursuant to Article 1365 of the Civil Code. Keywords: informed consent; good faith; doctors and patients

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REGULATIONS FOR E-COMMERCE AGREEMENT ACCORDING TO ICT ACT AND TITLE III OF INDONESIAN CIVIL CODE

Diponegoro Law Review ◽

10.14710/dilrev.4.1.2019.76-88 ◽

2019 ◽

Vol 4 (1) ◽

pp. 76

Author(s):

Ery Agus Priyono ◽

Budiharto Budiharto ◽

Asri Hayyunniarizka Wulandari

Keyword(s):

Economic Growth ◽

Research Method ◽

Secondary Data ◽

Civil Code ◽

The Internet ◽

Great Contribution ◽

Normative Approach ◽

Title Iii ◽

Safety And Stability

As a fruit of technological telecommunication prowess that is the internet, e-commerce has unveil the barrier that obstructs economic growth due to the unnecessarily complicated conventional procedures of bureaucracy. Technological deveopment in telecommunication has a great contribution to the economic growth for which we should be thankful. Yet at the same time, it needs to be regulated in order to construct a condusive and viable climates for economic growth. This article intends to disclose the availability of regulations that can ensure the safety and stability of the economy and keep the investors, consumers and entrepreneurs in accordance with the Title III of Indonesian Civil Code. The research method of this paper is normative approach that is based on secondary data. The outcome of the research is we found out that e-commerce practices shall be subjected under paragraphs 1320, 1321, 1337, 1338 and 1339 of Indonesian Civil Code.

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Perlindungan Hukum Bagi Kreditor Dalam Kaitannya Dengan Permohonan Pailit Yang Diajukan Oleh Debitor Studi Kasus Pada PT. BANK CIMB NIAGA Melawan PT. Sumatera Persada Energi

Hukum dan Masyarakat Madani ◽

10.26623/humani.v7i2.1026 ◽

2017 ◽

Vol 7 (2) ◽

pp. 119

Author(s):

Imam Magribi ◽

Dewi Tuti Muryati ◽

Supriyadi

Keyword(s):

Data Analysis ◽

Data Collection ◽

Qualitative Analysis ◽

Subject Matter ◽

Research Method ◽

Secondary Data ◽

Descriptive Data ◽

Collection Method ◽

Principle Of Justice ◽

The Subject

Tindakan Pailit adalah suatu sitaan umum atas semua kekayaan Debitor Pailit yang pengurusan dan pemberesannya dilakukan oleh Kurator dibawah pengawasan Hakim Pengawas. Harta pailit akan dibagikan sesuai dengan porsi besarnya tuntutan Kreditor. Berdasarkan latar belakang maka yang menjadi pokok permasalahan dari penelitian ini adalah bagaimana perlindungan hukum kreditor atas kepailitan yang diajukan debitor, dan bagaimana penyelesaian harta pailit debitor kepada para kreditor sehubungan dengan permohonan pailit oleh debitor. Penelitian hukum dengan tipe penelitian menggunakan yuridis normatif, spesifikasi penelitian deskriptif analitis, metode pengumpulan data menggunakan data sekunder yang meliputi bahan hukum primer, bahan hukum sekunder, dan bahan hukum tersier, metode analisis datanya menggunakan analisis kualitatif. Perlindungan hukum kreditor atas kepailitan yang diajukan debitor atas permohonan kepailitan yang dilakukan oleh PT. Sumatera Persada Energi telah sesuai dengan Undang-Undang Kepailitan yang berlaku baik Undang-Undang Nomor 4 Tahun 1998 maupun UUKPKPU, karena secara substansial tidak ada perubahan dalam syarat-syarat pengajuan permohonan kepailitan. Syarat-syarat pengajuan permohonan kepailitan tersebut jauh dari asas keadilan bagi penyelesaian kepailitan antara debitor dan kreditor, terutama bagi kreditor yang mempunyai debitor harta kekayaannya (boedel) tidak cukup untuk membayar keseluruhan hutang kepada kreditor. The Bankruptcy Act is a public confiscation of all the wealth of the Bankrupt Debtor whose stewardship and ordering are carried out by the Curator under the supervision of the Supervisory Judge. Bankruptcy assets will be distributed in accordance with the portion of the creditors demand. Based on the background then the subject matter of this research is how the protection of the creditors law on bankruptcy filed debtor, and how the debtor bankruptcy property settlement to the creditors in connection with the request for bankruptcy by the debtor. Research method, research method consist of type / type of research using normative juridical, research specification using analytical descriptive, data collection method using secondary data covering primary law material, secondary law material, and tertiary law material, method of data analysis using qualitative analysis. Protection of the creditor's law of bankruptcy filed by the debtor on the Bankruptcy Application made by PT. Sumatra Persada Energi has been in compliance with the Bankruptcy Act applicable both Law Number 4 of 1998 and UUKPKPU, because substantially there is no change in the requirements for filing of bankruptcy petition. The requirements for filing a petition for bankruptcy are far from the principle of justice for bankruptcy settlement between the debtor and the creditor, especially for creditors whose debtor is not enough to pay the entire debt to the creditors.

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Analisis Yuridis terhadap Kasus Gugatan Perbuatan Melawan Hukum atas Ketidakabsahan Peralihan Hak Milik Benda Bergerak (Studi Kasus Putusan Mahkamah Agung Nomor 1081/K/PDT/2018)

Kosmik Hukum ◽

10.30595/kosmikhukum.v20i1.6433 ◽

2020 ◽

Vol 20 (1) ◽

pp. 21

Author(s):

Fathalya Laksana

Keyword(s):

Supreme Court ◽

Research Method ◽

Secondary Data ◽

Supreme Court Decision ◽

Civil Code ◽

Court Decision ◽

Analysis Method ◽

The Supreme Court ◽

Analytical Research ◽

The Law

The legal requirements are regulated in Article 1320 of the Civil Code (KUHPerdata). If the valid conditions of the promise are not fulfilled, then the law that results is that the agreement can be canceled or null and void. In the Court's practice contained in the Supreme Decision Number 1081K / PDT / 2018, there was a sale and purchase agreement between the Plaintiff's husband and the Defendant, the sale and purchase agreement was made by the Plaintiff's partner without the consent of the Plaintiff as his legal wife. Supreme Court Decision No. 1081K / PDT / 2018 stated that the sale and purchase agreement was invalid and null and void. Apart from that, in its decision, the Defendant's UN Supreme Court had committed an illegal act. The research method used is a normative juridical approach using secondary data obtained from literature studies, namely statutory regulations, legal theories, and the opinions of leading legal scholars. This research uses descriptive analytical research specifications that describe the regulations that are in accordance with legal theories that oversee the implementation practices of the problems under study. The data analysis method used is qualitative normative method. Based on the research results, it can be denied that the sale and purchase agreement in the Supreme Court Decision Number 1081K / PDT / 2018 is not legally valid. The agreement does not fulfill the validity requirements of the agreement in Article 1320 of the Civil Code, namely halal skills and causes because it violates Article 36 paragraph (2) of the Marriage Law No. 1 of 1974 resulting in the sale and purchase agreement to be null and void.Keywords: Buying and Selling, Acts against the Law, Agreement, Marriage, Collective Property

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MEKANISME DAN KEABSAHAN TRANSAKSI JUAL BELI E-COMMERCEMENURUT KITAB UNDANG-UNDANG HUKUM PERDATA

Badamai Law Journal ◽

10.32801/damai.v1i1.257 ◽

2016 ◽

Vol 1 (1) ◽

pp. 180

Author(s):

Santonius Tambunan

Keyword(s):

Research Method ◽

Civil Law ◽

Civil Code ◽

Good Faith ◽

Specific Subject ◽

Online Buying

The title ofthis studyis themechanismand thevalidity of thetransactione-commerce in terms ofArticle1320Indonesian Civil Law. The research method usedin this studyis the kind ofnormativeresearchthatexaminesthe norms, principles and legaldoctrinesrelating tothe issues raised. Thetype ofresearchthat researchers usein this studyare the type ofresearch on thelevel ofhorizontalsyncisthe norminterms of theInformation and Electronic Transaction Act withthe provisionsof Article1320Indonesian Civil Law.Offer and acceptance are the stages of pre online buying and selling contracts in e-commerce. In this process the good faith of the parties shall take precedence in the transaction. The momentum of the sales contract e-commerce can not be separated from the pre-contract stage. Although the mechanism is different transactions, but in general the contract e-commerce trading has occurred since the purchaser or consumer to send a message of acceptance of the products on offer to the seller (merchant). This suggests that the momentum of buying and selling contracts e-commerce more closely at the theory of acceptance (ontvangstheorie).Subjective terms in the transaction e-commerce are consent of the individuals who are bound thereby and capacity to conclude an agreement. While the objective terms are a specific subject and an admissible cause. Information and Electronic Transaction Act is a lexspecialis provisions of Article1320Indonesian Civil Law. However, in this Act only regulates consent of the individuals who are bound thereby and a specific subject, while capacity to conclude an agreement and an admissible cause has not been accommodated. Therefore, capacity to conclude an agreement and an admissible cause, can refer to the Civil Code as its lexgeneralis. Keywords: E-commerce, Sale and PurchaseTransaction, Mechanism, Validity

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ADULTERY CHILD STATUS IN ISLAMIC LAW AND IN THE CIVIL CODE

Hukum Islam ◽

10.24014/jhi.v19i2.7534 ◽

2019 ◽

Vol 19 (2) ◽

pp. 89

Author(s):

HARI SUTRA DISEMADI

Keyword(s):

Research Method ◽

Islamic Law ◽

Secondary Data ◽

Civil Code ◽

Cost Of Living ◽

Biological Father ◽

Marital Relations ◽

Illegitimate Child ◽

The Status ◽

The Cost

Problems regarding the status of children born outside of legal marital relations are still interesting discussions. In the community the status of children is often questioned, because not a few children are born without marriage. So from this this study will focus on the status of illegitimate children in Islamic law and in the Civil Code. The research method used is a normative juridical research method based on secondary data, namely primary legal material, secondary legal material and tertiary legal material. This research shows that in Islamic law and Civil Code the legitimate denial of children can result in the breakup of marriage making the child an illegitimate child and not having an inheritance relationship with his parents, but his mother according to Islamic law. If the child of adultery is associated with obligations and responsibilities regarding survival, then the parents or fathers are still charged with the obligation to provide a living. As the cost of living and the cost of their education as needed or according to their abilities, because he is the biological father of the child. If the status of the adultery child is associated with inheritance according to BW, then he does not inherit at all to the two tunya people. but if it is associated with Islamic inheritance, then he inherits only his mother and his mother's family.

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