Understanding of Breach and Tort Law on Academic Discourse and Judicial Practice

Abstract

In the system of Civil Law, including Indonesia’s system of law, contract and tort law are regulated in one generic agreement. Regulation in one generic agreement lead to an overlapped the understanding between breach and tort law. Overlapping understanding of breach and tort law occured both on academic discourse and judicial practice. Focus issues: First, differences between breach and tort law. Second, benchmarks should have been established by courts to determine the boundary between breaches and acts against of law in contract. The type of research is normative law research. By using this type of research, conclusions could be drawn are: First, as conseptual juridicial “house” of breach is not performing the contractual obligations, while “house” of tort law is not performing the non-contractual obligations. Second, on the searching of the cases, found the facts that court through its decisions did not have deeper and comprehensive understanding on the meaning of breach and tort law. Courts could not determine the benchmarks to determine the boundary of breach and tort law. Recommendation, First, should be an affirmation of the boundaries between breach and tort law, by returning each of breach and tort law institutionsto their “house”. Second, the needs of guidance for judges to determine the boundary between breach and tort law trough leaflets and Supreme Courts Training.