Implementasi Putusan Kasasi Swastanisasi Air
September 3, 2018
September 3, 2018

by M. Gavin and Aleyna Azzahra

The contract is nothing but the treaty itself (of course the binding agreement). Article 1233 of Indonesian Civil Code states that each engagement is born from Agreement and Laws. The contract in Burgerlijk Wetboek (BW) is called overeenkomst which means agreement. One of the reasons why agreements by many people usually unequate with a contract is because in the sense of the agreement given by Article 1313 of Indonesian Civil Code does not contain the word “agreement made in writing”. The understanding of the agreement under article 1313 of Indonesian Civil Code, only means an act where one or more persons commit themselves to one or more persons.

Principles of Contract Law

1. The Principle of Consensualism
Pursuant to Article 1320 of the Indonesian Civil Code, agreement is required for the birth of the agreement.

2. Freedom of Contract
the parties freely make contracts and self-regulate the contents of the contract, to the extent that they meet the following requirements:
– Eligible as a contract
– Not prohibited by law
– As long as the contract is executed in good faith

3. Pacta Sunt Servanda
Every person who makes the contract, bound to fulfill the obligation of contract that contains promises which must be fulfilled and the promise binds the parties as binding the law.

4. Good Intentions
According to Article 1338 Paragraph (3) of Indonesian Civil Code, a contract must be carried out in good intentions. The formulation of Article 1338 paragraph (3) indicates that in fact good intentions is not a requirement for the validity of a contract as the conditions contained in article 1320 of Indonesian Civil Code. Good intentions is required in the “implementation” of a contract, not on “making a contract”. Therefore, the element of “good intentions” in terms of making a contract can already be covered by the element of “legal cause” of Article 1320.

Legal Terms of Contract
1. Agreement
The parties’ agreement is an absolute element for the occurrence of a contract. This deal can happen in many ways, but the most important is the offer and acceptance of the offer. The occurrence of an agreement may occur in writing and not in writing.

2. Skills
The requirement of the ability to make an engagement, must be clearly stated about the identity of the parties. Article 1330 of Indonesian Civil Code states that non-qualified persons to enter into an agreement are:
– People who are immature, not yet 21 years old and not married
– Those who are under the ability
– Unauthorized person

3. Certain Things
In a contract the object of the agreement must be clear and determined by the parties, the object of the agreement may be in the form of goods or services, but may also be doing nothing. This particular thing in the contract is called an accomplishment (prestasi) that can be tangible goods, expertise or energy, and do nothing.

4. Lawful Reasons
The contents of the contract are not contrary to the laws and regulations. The contents of the agreement must contain / permissible allowed. What is the object or content and purpose of the achievement (prestasi) which gives birth to the agreement must not be against the law, morality and public order.

Contract law is part of the law of engagement. In contract law there are five principles known according to the science of civil law. In order to make the right legal contract, people not only have to understand contract itself but also both of The five principles and the legal requirements of contract.

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