Freedom Of Contract Principle Research Articles

Implications of the Contract Freedom Principle and Legal Consequences of Standard Contract Which Detrimental to Debtors of Bank Syariah Indonesia (BSI) Makassar

The objectives of the study were as follows: 1) To determine how the freedom of contract principle is affected by the implementation of standard contracts; and 2) To determine the legal repercussions of standard contracts whose terms are unfavorable to the debtor or consumer. This kind of research consisted of normative legal research or research conducted in libraries. The study made use of qualitative analysis by elaborating on the previously collected data through the use of words or statements. 1) The implication of the principle of freedom of contract in the implementation of a standard contract is first determined as a written condition in a form, then duplicated in a certain amount according to need. This was shown to be the case by the findings. Because of the preceding, customers are unable to negotiate the terms of the agreement because these forms are then provided to customers in mass quantities, despite the fact that the conditions outlined on each form are unique from those outlined on the other forms. To phrase it another way, consumers do not have the same level of bargaining power as producers or creditors; 2) The legal consequences of standard contracts whose contents are detrimental to the debtor/consumer because at the beginning of making/composing the agreement the creditor/producer did not involve the customer in making/composing the agreement so that they had no other choice; 3) The As a consequence of this, a number of aspects of the standard agreement are regarded as being in conflict with the rights of the debtor or consumer. These aspects are as follows: (1) The content, terms, and conditions are determined unilaterally; (2) the contents of the agreement are not known about the legal impact and consequences; (3) the bank is more dominant in the agreement; (4) Conditions are forced in the agreement.

PENERAPAN PRINSIP KEBEBASAN BERKONTRAK DALAM KONTRAK STANDAR PENGADAAN BARANG DAN JASA PEMERINTAH DI INDONESIA

Kebebasan berkontrak bukanlah kebebasan tanpa batas. Kontrak standar pengadaan barang dan jasa pemerintah merupakan salah satu pembatas kebebasan berkontrak. Pembentukan dan pengaturan hak dan kewajiban yang termuat dalam kontrak pengadaan barang dan jasa, didasarkan pada peraturan standar yang termuat dalam Standar Dokumen Pengadaan/Standar Dokumen Pengadaan Secara Elektronik. Penelitian ini bertujuan untuk menganalisis keberlakuan prinsip kebebasan berkontrak dalam kontrak standar, serta bentuk kebebasan berkontrak dalam kontrak standar pengadaan barang dan jasa pemerintah. Melalui penelitian yuridis normatif, penelitian ini menemukan kontrak standar bertentangan dengan prinsip kebebasan berkontrak, kemudian ditemukan bentuk kebebasan berkontrak dalam kontrak pengadaan barang dan jasa pemerintah yaitu pada tahapan pra kontraktual. Pada tahapan kontraktual dan tahapan post kontraktual, kebebasan berkontrak hanya merupakan pelaksanaan dari ketentuan undang-undang. Untuk itu, rekomendasi dari penelitian ini adalah perlu dilakukan perubahan terhadap ketentuan mengenai hak dan kewajiban para pihak baik pada tahap pra kontraktual, kontraktual, maupun post kontraktual pada kontrak pengadaan barang dan jasa.

Consistency Arrangement of Absolute Power of Attorney in Transfer of Rights to Land

The Agreement to Give Absolute Power of Attorney or better known as the Absolute Power of Attorney (Absolute Power of Attorney), is not known in the Civil Code. Even though the Civil Code does not recognize him, the existence of an Absolute Power of Attorney is not prohibited. The articles in Book III of the Civil Code are only complementary, the parties are allowed to deviate from them. So that if the parties involved in the power-giving agreement want absolute power, then this is allowed and not prohibited by the Civil Code. Because in principle, contract law is open (freedom of contract principle) and legal certainty principle.

Controversial Issues on the Making of Notarial Deed Containing Chained Promise (Beding Berantai) on the Freedom of Contract Principle

In carrying out the duties as a civil law notary, it is possible that they find himself/herself composing a deed containing chained promise (beding berantai). Departing from this background, it can be drawn that the formulation of the problem, among others, how is the position of chained promise (beding) in Indonesian civil law order and how is the role of civil law notary balancing legal protection for the parties in making deed containing chained promise (beding). Another controversial issue is the chained beding faced with the freedom of contract principle. The purpose of this research is to understand the position of chained promise (beding) in Indonesian civil law order and the role of civil law notary balancing legal protection for the parties in making deed containing chained promise (beding). To answer the questions, a juridical normative approach is conducted. To obtain legal materials needed, it is then carried out by searching, collecting and reviewing library materials, legislation, research results, scientific works and other written documents. Data obtained from the result of study will then be analyzed qualitatively. From the results of study, it is known that chained promise (beding berantai) is an instrument or a way to transfer rights/obligations arising from an agreement to the party that obtains rights based on a special title. Recommendations given to the stakeholders are, namely civil law notary themselves in carrying out their duties and positions so that he/she could pay more attention to the points represented in his/her product of authentic (notarial) deed.

Freedom of Contract against the Constitutional Non-discrimination Principle

The purpose of the theoretical considerations contained in this article is to attempt to define the ways to eliminate conflicts between the constitutional non-discrimination principle, as a reflection of the equal treatment principle, and the freedom of contract principle, as a reflection of the constitutionally protected party autonomy principle, which is a foundation of private law. On the background of the horizontal effect (radiation) of constitutional fundamental rights on individual rights, a question arises about which criteria shall decide in practice about the resolution of conflicts between the aforementioned principles within diversified trading, including mass consumer trading. In particular, a very important issue in the context of European standards, including European model law, is the question about the legal remedies (of a property [pecuniary] and non-property [nominal] nature) which may serve to eliminate the consequences of infringement of non-discrimination rights in the process of contracting. There is also the question of how far in scope the traditional civil law remedies serving the protection of personal rights – apart from instruments established by non-discrimination regulations – may find application in this field if vivid manifestations of non-discrimination violate human dignity, which is the foundation of the protection of personal rights.

DELIMITATION OF FREEDOM OF CONTRACT PRINCIPLE AND JUDGE’S CORRECTIVE FUNCTION IN ASSESSING THE PARTIES’ POSITIONS ON AN AGREEMENT

The principle of freedom of contract established for much types of contract. This principle concerned onhow parties state their mind freely into the contract clauses. The primordial concept of freedom of contractwas reduced based on Indonesian judiciary practice. This normative research of law tries to analyse theconcept alteration of meaning and implementation of freedom of contract in Indonesian Judiciary practice.The Supreme Court of Indonesia through its precedent provides broader authority to the Judges in orderto supervise and remedy the unbalance stand of parties on a contract they state which causes one or moreconsiderations cannot be or make difficulties to perform. The result of this research show us that freedomof contract principle is confined by proportionality, appropriateness, and justice principles toward partiesin a contract stated.

Karakteristik Asas Kebebasan Berkontrak dalam Perjanjian Berbasis Syariah

Sharia-based contract is an agreement that is derived from the nomenclature of Islamic law. It is definitely designed as the agreement that shall refer to norms based on legal sources of Islam, i.e. the Qur'an and the Hadith of the Prophet Muhammad. This paper discusses the main issue as follows: the dynamics of developments and characteristic principle of freedom of contract in Sharia-Based Agreement". The research refers to the legal writing i.e. normatively legal research which the issue is conceptually approached. Through this approach, the author wants to explore and formulate the concept of freedom of contract principle in Sharia-based agreements, both in terms of its growth and characteristics. The result of the research shows that characteristics of the principle of freedom of contract in Sharia-Based Agreement contain the basic paradigm based on a philosophical view of divinity and apocalyptic. The meaning is that the principle of sharia-based agreement is not established on absolute freedom of contract, but on the freedom that does not violate Islamic values. Therefore, the principle of freedom of contract in the Sharia-based agreement functionates to ensure the engagement of the parties in obeying the agreement, because in the Islamic perspective, the freedom of contract as a form of agreement among parties to enter into a contract fundamentally becomes the principle for the parties to obey or comply the contract.

A critical analysis of the ‘one share–one vote’ controversy

The question of whether companies' share structure should be based on proportionality between ownership and control has been debated for decades. Powerful institutional investors have over the years tried to convince the EU that a harmonisation of share structures across Europe improves corporate governance. This, however, has been heavily disputed by the several listed companies and their organisations, which fear a standardisation is not in the long-term interests of the firms stakeholders. This paper describes the latest attempt by the EU Commissioner Charlie McCreevy to challenge nonproportional share structures such as dual-class voting shares — a highly relevant question, as it turns out that nonproportionality is often more the rule than the exception. The paper provides sound arguments as to why regulators should not set aside the freedom of contract principle in order to standardise listed companies' share structure as ‘one size does not fit all’. However, the freedom of contract principle goes hand in hand with transparency. Moreover, disclosure about a company's share structure is essential in order to give investors information about which types of shares best satisfy the preferences of different investor groups. EU Commissioner McCreevy surprised almost everybody last year when he declared at the European Parliament that he had decided to abandon his quest for imposing a system of ‘one share–one vote’ across Corporate Europe. This does not mean that the debate is over, as the issue of share proportionality will come up again in a few years when the takeover directive is to be reconsidered, hence we may speak about ‘a newer ending story’. This paper seeks to tell the story's most interesting pages.