EKSEKUSI TERHADAP OBJEK JAMINAN FIDUSIA PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR.18/PUU-XVII/2019.

Fiduciary is the transfer of ownership rights to an object on the basis of trust provided that the object whose ownership rights are transferred remains in the control of the owner of the object. In the implementation of fiduciary, the goods that are pledged remain in the power of the debtor. Fiduciary guarantees are security rights for movable objects, both tangible and intangible and immovable objects, especially buildings that cannot be encumbered with mortgage rights. The principle of the object of the fiduciary guarantee is the creditor's trust in the debtor. In the fiduciary guarantee law, if the debtor defaults, the object of the fiduciary guarantee will be handed over to the creditor for the purpose of fiduciary execution. The fiduciary guarantee law gives the creditor the right to carry out the execution of the fiduciary guarantee object, the existence of this power, the creditor can withdraw the fiduciary guarantee object by means of parate execution. However, with the Constitutional Court Decision Number 18/PUU-XVII/2019 regarding the application for judicial review of Article 15 section (2) and section (3), which requires a breach of contract agreement between the creditor and the debtor and the debtor's willingness to submit the object of collateral, has eliminated the rights of creditors and eliminated the principle of material rights. Based on these problems, the question in the research is how to execute the object of fiduciary security after the Constitutional Court Decision Number 18/PUU-XVII/2019 and what is the impact of the Constitutional Court Decision Number 18/PUU-XVII/2019. The legal research method in this paper is normative juridical which is reform oriented research. The conclusion in this study should be in the fiduciary guarantee certificate including the completeness of the default clause, to strengthen the evidence that the debtor has committed a breach of contract. If the debtor (fiduciary giver), after being agreed by the parties, is deemed to be in breach of contract (default), the execution of the object of the fiduciary guarantee can be carried out independently.

IMPLEMENTATION OF CONSUMER PROTECTION ON EXECUTION OF UNREGISTERED FIDUCIARY WARRANTYAT PT.FEDERAL INTERNATIONAL FINANCE (FIF) OF BENGKULU BRANCH

The execution of collateral in the financing institution as contained in the UUJF is clearly made by the creditor against the debtor whose is breach of contract, in which the execution of the creditor has a permanent legal forceand legitimate. However, for unregistered warranty in accordance with UUJFwould cause conflict. One of the conflicts that arises is the unprotected consumer rights. The purpose of this research is to understand and analyze the implementation of consumer protection on execution of fiduciary Warranty which is not registered at PT.Federal International Finance (FIF) of Bengkulu Branch. The method used was empirical juridical approach, by using qualitative analysis. Result of the research mentioned that implementation of consumer protection at execution of unregistered fiduciary Warranty at PT. Federal International Finance (FIF) of Bengkulu Branch was not in accordance with the provisions of applicable legislation where the execution of PT. Federal International Finance (FIF) of Bengkulu Branch was not accompanied by a fiduciary certificate and was not through previous mediation efforts so that the execution of non-registered fiduciary warrantyviolated the rights of the debtor as a consumer.

Effect of pandemic on performance of contracts and remedies to the cases of breach

There would hardly be be any walk of life which has gone unaffected by the Covid-19 pandemic. It’s effect of the performance of contracts has also attracted legal questions and practical balancing of interests. In deciding whether a sum stipulated to be paid in case of breach of contract is liquidated damages or penalty to secure performance of the contract, intention of party is an important factor in determining but not always controlling one. Substantially, remedies are given by actions in cases of performance of contracts. The nature of the contract determines the kind of remedies. The article demonstrates the structure of damages, penalty-default theory as derived from Hadley v. Baxendale. It also analyses the effects brought in by the Covid-19 pandemic over the award of damages. By this article, the authors aim to analyze the two most crucial aspects of the Indian Contract Act ie. Performace, frustration and award of damages. The article attempts to scrutinize the dimensions and ways in which these words can be interpreted and applied. In this paper, the author will rely on critical and comparative analysis. For certain empirical demands of the topic, already published data and information will be relied on and acknowledged.

MAKING SENSE OF MESNE PROFITS: REMEDIES

This is the second of two articles about cases in which awards of “mesne profits” have been made against defendants who have occupied claimants’ land. The first article argues that the facts of cases where such awards have been made variously support claims in tort, contract or unjust enrichment and that practical consequences can flow from categorising the cases in one way or another. One is that different rules affect the assessment of remedies awarded to claimants depending on the claim that was made and the remedy that was awarded. The present article develops this point by examining the assessment principles governing “mesne profits” awards, according to whether these are classified as compensatory damages in tort, restitutionary damages in tort, orders that a defendant perform a contractual duty to pay a debt, compensatory damages for breach of contract, or orders that a defendant make restitution of an unjust enrichment.

SHOULD REFUSAL TO WORK FOLLOWING BREACH OF CONTRACT BY THE EMPLOYER REALLY BE A STRIKE? National Union of Mineworkers on behalf of Employees v Commission for Conciliation Mediation and Arbitration (2011) 32 ILJ 2104 (LAC)

The employment relationship is by its very nature premised on the foundation of inherent inequality between the employer and the employee. The employer by virtue of the resources at its disposal is in a stronger position than the employee. One of the strong criticisms levelled against the common law has always been its indifference to this unequal division of power. The common law tends to deal with a contract of employment on the basis that it is an agreement entered into voluntarily and on equal footing bythe employer and the employee. Unsurprisingly, the common law regards terms that regulate the employment relationship as being freely entered into by the contracting parties. This assumption overlooks the inherent inequality that characterizes the employment relationship. It is on account of this assumption that the common law can be mostly associated with unfairness when it comes to the employment relationship. Nowhere is this assumption clearer than in cases of dismissal. In relation to dismissal all that the common law demands is that the dismissal must be lawful. This requirement is easily met if the employer merely provides the employee with a notice of the dismissal. Under the common law there is no mention of fairness as a requirement for a dismissal. In order to address the deficiencies of the common law, the legislature has enacted labour legislation like the Labour Relations Act (66 of 1995, hereinafter “the LRA”) which seeks to bring in some equilibrium in the employment relationship. It must also be said that the LRA provides partiesinvolved in the employment relationship with a framework within which employment issues must be addressed. This has resulted in a situation where in some instances there is a collision between the common law and the LRA. The critical question that emerges is whether the rights and remedies of the employees in the event of a breach of contract must be exclusively determined within the framework of the LRA. If the answer is in the affirmative then it means that the common law has lost some of its relevance in employment issues. This case note seeks to analyse the tension between the common law and the LRA in the context of employees withholding their labour on account of a breach of contract by the employer. It also seeks to analyse the implications of the approach adopted by the Labour Appeal Court in National Union of Mine Workers on behalf of Employees v Commission for Conciliation Mediation and Arbitration ((2011) 32 ILJ 2104 (LAC)).

8. Articles 101 and 102: private enforcement in the courts of Member States

This chapter describes the private enforcement of competition law, that is to say the situation where litigants take their disputes to a domestic court or, quite often, to arbitration. It will deal with the private enforcement of Articles 101 and/or 102 as a matter of EU law, with particular emphasis on the Damages Directive. It also describes private actions for damages and injunctions in the High Court and the UK Competition Appeal Tribunal. The chapter considers the use of competition law as a defence, for example to an action for breach of contract or infringement of an intellectual property right. The chapter concludes with a brief discussion of issues that can arise where competition law disputes are referred to arbitration rather than to a court for resolution.