Principle Of Pacta Sunt Servanda Research Articles

A Comparative Look at the Duty to Mitigate Loss: the Consequences of the Violation of This Duty

The duty to mitigate loss is a general principle of law that serves to limit the liability of the party that has caused injury to the extent that the injured party has not demonstrated the diligence expected from the latter. However, this duty also serves the purpose of ensuring economic efficiency. While the classic understanding requires that, according to the principle of pacta sunt servanda, the interests of the injured party should be prioritized, today, the contract also refers to the cooperation between the parties. Therefore, reduction in the amount of claimable compensation should not be the sole sanction vis-à-vis the injured party that has violated the duty to mitigate loss. Otherwise, the injured party may escape the consequences of having violated the duty to mitigate loss by resorting to other optional rights. However, in order to ensure economic efficiency, in case the injured party violates the duty to mitigate loss, sanctions should also be foreseeable in terms of other optional rights. This study will evaluate the effect of the violation of the duty to mitigate loss in particular, with regards to request for specific performance and rescission of contract.

The Impact of the Legal Principle Pacta Sunt Servanda on the Implementation of the Agreement of Principles Governing the Normalization of Relations

This study investigates the influence of the legal principle of pacta pacta sunt servanda, cornerstone in the respect of international agreements and on the execution of the First Agreement of Principles Governing the Normalization of Relations. The First Agreement holds significant importance in fostering reconciliation among the involved parties and has been notably shaped by this principle, which underscores the complete and precise fulfillment of agreements. Through a thorough examination, this study provides an outline of the historical evolution and legal significance of this principle, its application within the framework of the First Agreement, and delves into the political ramifications and obstacles encountered during its execution within a dynamic international landscape. The research methodology involves the scrutiny of legal documents, pertinent case law, and academic literature. The findings contribute to our comprehension of the interaction between legal principles and political considerations in international accords. By elucidating the impact of this principle on the execution of the First Agreement, this research furnishes valuable insights for policymakers, legal practitioners, and scholars in the realm of international law and diplomacy.

Doctrinal Approaches to the Problem of the Influence of a Fundamental Change in Circumstances on the Operation of Treaties

The paper is devoted to the study of the views on the problem of the influence of a fundamental change in circumstances on the operation of treaties that existed in the science of international law before the adoption of the Vienna Convention on the Law of International Treaties of 1969. The author analyzes the following approaches, common in international legal science, to the problem of applying the rebus sic stantibus clause in interstate contractual practice: its unconditional support; her denial; recognition of the admissibility of using a clause in the presence of a number of conditions.Based on the study of special scientific literature, conclusions are drawn regarding the validity and acceptability of each of the approaches, which to a certain extent contributes to a proper understanding of the true meaning of the current conventional norm on the impact of a fundamental change in circumstances on international treaties. An analysis of the first approach, which assumes the right of any of the states party to the treaty to refuse to implement it in the event of such a change in circumstances that seriously affects the fundamental rights of this state, leads to the conclusion that in the absence of clear criteria for the use of a clause, it is almost impossible to reliably answer the question of whether after a change in circumstances, the implementation of the contract will threaten the fundamental rights of the state. The denial of the rebus sic stantibus clause was argued either by challenging its legal essence or by stating its inconsistency with the principle of pacta sunt servanda. The third approach, which is the most realistic, won approval at the UN Vienna Conference on the Law of Treaties and was normatively enshrined in the Vienna Convention of 1969, which ultimately made it possible to remove uncertainty regarding the impact of a fundamental change in circumstances on the operation of international treaties.

KEPASTIAN HUKUM AKTA PERJANJIAN KERJASAMA ANTARA PEMERITAH DKI JAKARTA DENGAN PIHAK PENGEMBANG TERKAIT PEMENUHAN KEWAJIBAN FASILITAS SOSIAL DAN FASILITAS UMUM YANG TELAH DISETUJUI DALAM SURAT IZIN PENUNJUKAN PENGGUNAAN TANAH (SIPPT).


 
 
 
 Legal certainty regarding the Deed of Cooperation Agreement between the Regional Government of DKI Jakarta and the Developer regarding providing social and public health obligations in the Land Use Designation Letter (SIPPT), has been regulated in the Civil Code and DKI Jakarta Regional Regulation Number 7 of 2002 concerning Public Infrastructure, Facilities and Utilities, but it has been implemented what happens is not fulfilling its obligations. The formulation of the problem in this research is how the authority of the Regional Government of DKI Jakarta is related to the non-fulfillment of social and social infrastructure obligations in the SIPPT by the floating party, and how is the legal certainty of the deed of cooperation agreement between the Regional Government of DKI Jakarta and the relevant Floating Party containing the social and public welfare obligations in the SIPPT. Legal theories used in this research: Authority Theory according to Bagir Manan and Legal Certainty Theory according to Gustav Radbruch. The method used in this research is a type of normative juridical research, namely legal library research or secondary data with primary, secondary and tertiary sources of legal materials. The research approaches used are the Legislative, Conceptual, Case and Analytical Approaches and techniques for collecting legal materials are carried out by identifying and inventorying positive legal rules, literature books, journals and other sources of legal materials. The analysis technique for legal materials is carried out using Grammatical Interpretation and Systematic Interpretation. The results of this research indicate that the DKI Jakarta Government has the authority to collect, supervise, prohibit, complete maintenance, provide administrative sanctions and criminal sanctions for providing social and public health obligations to developers in accordance with DKI Jakarta Regional Regulation Number 7 of 2002 concerning Public Infrastructure, Facilities and Utilities. The commitment and professionalism of DKI Jakarta Regional Government officials to carry out their authority by providing strict sanctions to developers who do not carry out their obligations. Legal certainty regarding the deed of cooperation agreement between the DKI Jakarta Government and the Developer regarding social and public facilities obligations in accordance with the Land Use Designation Permit (SIPPT), has legal certainty in accordance with the Pacta Sunt Servanda Principle where the agreement is valid as law for the party making it. Changes to the agreement are possible as long as both parties agree to it in the form of an addendum to the agreement, however non-implementation of the agreement is a breach of contract which can be sued in court.
 
 
 

Principle Law Pacta Sunt Servanda in Agreement Rent Place Business

Objective: Pacta sunt servanda is one of the principles that apply in rental agreements, namely that the contract that has been agreed upon then becomes valid as governing law. However, in reality, rental contracts are not based on the principles of the agreement; therefore, it can lead to default. Thereby causing losses to other parties. This research aims to determine the implementation of the legal regulation of pacta sunt servanda in rental agreements for business premises. Methode: The research method used is normative research by inventorying, studying, analyzing, and understanding the law as a set of regulations or positive norms in the legal system regulating human life. This research collected data through a literature study, namely a review of library materials related to the studied problem. Result: In an agreement such as a rental agreement, principles or principles are closely related to regulating and directing the parties in a rental agreement; namely, the owner of the business space must adhere to regulations or principles closely associated with the contents of the rental agreement. Conclusion: this research is the implementation of the legal principle of pacta sunt servanda in the rental agreement for business premises that in the rental agreement for business premises that have been handed over for rent, the parties have agreed to the rental agreement for the business premises, as a form of respect for the rental agreement. According to Article 1338 paragraph (1), the business space must be like the enactment of regulations that can regulate the parties based on one principle of contract law, namely the principle of pacta sunt servanda.

Myanmar's Rejection Of The United Nations Resolution: Allowed of Not?

Myanmar's Ministry of Foreign Affairs rejected the Myanmar Ministry of Foreign Affairs calls for an arms embargo and power struggle by the military in a UN general assembly resolution last February because the resolution was considered based on unilateral accusations and false assumptions, and the resolution was deemed not legally binding. In addition, several Myanmar statements have been adopted by the UN security council, which has the authority as well as resolutions deemed legally binding, such as the prohibition of acts of violence against protesters. In addition, the resolution calls on the military not to commit acts of violence as well as restore the democratic transition. The purpose of this study is to find out whether Myanmar may reject the UN General Assembly resolution or not. The study uses normative legal research with a case approach using qualitative descriptive methods to describe the legal reasons used in Myanmar's rejection of the UN General Assembly resolution and how to apply the principle of pacta sunt servanda in this case. The results show that Myanmar rejects the UN resolution calling for an arms embargo because Myanmar considers that the resolution is not legally binding and based on the pacta sunt servanda. Myanmar should accept the UN General Assembly resolution because it binds an agreement to the parties who made it.

EFEKTIVITAS ASAS PACTA SUNT SERVANDA SAAT TERJADI KEADAAN MEMAKSA (FORCE MAJEURE) DALAM HUKUM PERJANJIAN INDONESIA

The effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law becomes an important subject when force majeure occurs. This principle implies the obligation of parties to comply with the agreed contents of the agreement. However, when events beyond control, such as natural disasters, war, or other unexpected events (force majeure), this principle becomes tested. In this context, the effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law requires a balance between adherence to the agreed agreement and recognition of unforeseen circumstances that may affect its implementation. Awareness of the legal implications of force majeure is very important for the parties involved in the agreement, to maintain clarity, fairness and order in the implementation of the agreement amid the dynamics of unforeseen circumstances. The Pacta Sunt Servanda principle in Indonesian treaty law is intended to provide equal rights for all parties involved in a contract. However, in force majeure conditions, this principle may not apply due to circumstances that prevent contract compliance. By using a normative juridical approach, this research aims to evaluate the effectiveness of the Pacta Sunt Servanda principle in force majeure. The results of this study show that force majeure is one of the factors that affect the effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law. Therefore, the application of the Pacta Sunt Servanda principle can be delayed due to force majeure. The consequences are the loss of rights and obligations of the agreement and the non-fulfillment of the rights and obligations stipulated in the contract.

Legal Certainty of Digital Assets Non-Fungible Token (NFT) on The Opensea Platform

The role of technology in everyday life has become more sufficient. This technology results in digitalization which gives rise to digital assets that later become crypto assets that use blockchain technology to store data. The development of these crypto assets presents a technology called Non-Fungible Token (NFT) which is a technology linked to a work of art or other digital assets that serves to protect the artwork or digital assets and as proof of ownership. NFT presents a new way for artists to sell their art more safely and avoid harmful actions. However, the widespread use of NFT technology has created a problem due to the lack of legality regarding NFT. The formulation of the problems discussed in this thesis are: 1. What is the legal certainty for digital assets in the form of Non-Fungible Tokens (NFT) on the Opensea digital platform? 2. What is the legality of Smart Contracts in each transaction of Non-Fungible Token (NFT) through the Opensea digital platform? The research method used is a normative juridical research method, taking a statutory approach and having a descriptive-analytical nature. From the results of this research, can be seen that NFT has not been clearly regulated in Indonesian positive law, resulting in a legal vacuum. Regulations regarding Crypto are regulated by Bappebti as the governing body. Bappebti itself has not specifically regulated NFT regulations in Bappebti regulations. Besides that, other arrangements are seen through the Civil Code which regulates NFT as an intangible object ITE Law which regulates the implementation of the transaction. And regarding the protection of its Intelectual Property Rights through the Copyright Law. Then regarding the validity of the Smart Contract in Non-Fungible Token (NFT) transactions it is considered valid in Indonesian positive law based on the Pacta sunt servanda principle and must be based on the compliance of Article 1320 of the Civil Code.

Pactum De Compromittendo In Shares Purchase Agreement

The parties, namely the Seller and the Buyer have agreed to determine the arbitration clause in the form of a pactum de compromittendo made in writing and incorporated into the deed of the principal agreement for the sale and purchase of shares of PT. Indonesian Rice Granary. This means that since the beginning before the occurrence of a dispute, the choice of settlement has been determined through the Indonesian National Arbitration Board. In 2021, the Seller files a lawsuit against the Buyer as the Defendant through the general court to request that the said share sale and purchase agreement be declared null and void and has no binding force. In their decision, the Panel of Judges stated that in essence the Central Jakarta District Court had no authority to try this case. Regarding the legal considerations, the assembly based the rules in Article 118 HIR and Article 3 of Law no. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. This study uses a normative juridical approach with the results of the research showing that the enforceability of an arbitration clause in the form of a pactum de compromittendo is binding on the parties according to the pacta sunt servanda principle contained in Article 1338 Paragraph (1) of the Civil Code and the judge's decision as in its considerations is correct and has been according to law.

Legal Analysis of Cryptocurency Utilization in Indonesia

Background. Bitcoin is the world's first digital currency that uses the concept of Cryptocurrency, which is a digital asset designed as a medium of exchange using cryptographic techniques to secure transactions and control the administration of its currency units that are likely to continue to grow in the future. Based on Law No. 7 of 2011 on Currency or cryptocurrencies, Bitcoin cannot be considered as legal tender in Indonesia. Purpose. It is said to be a means of payment because the means of payment in Indonesia is the Rupiah, but based on the Regulation of the Minister of Trade of the Republic of Indonesia Number 99 of 2019, crypto assets are one of the commodities that can be used as the subject of futures contracts traded on futures exchanges. Method. his research uses a statute approach. In addition, a case approach is also used to find out the ratio decidendi used by the Constitutional Court judges in deciding cases of judicial review of laws related to indigenous peoples. Results. This type of research is normative juridical research. The nature of research in this research is descriptive analytical. The type of data used in this research is library research. The validity of crypto asset transactions based on Indonesian contract law which refers to the Civil Code is valid because it fulfills the terms of the agreement in article 1320 of the Civil Code and is supported by the principles contained in the Civil Code itself, including the principle of freedom of contract, the principle of consensualism, the principle of pacta sunt servanda, and the principle of good faith. Therefore, crypto asset transactions are also legalized according to Law Number 11 of 2008 concerning Electronic Information and Transactions (UU ITE) because crypto asset transactions are carried out online through the internet network. Conclusion. The Indonesian government then compiled several rules to accommodate interests as guidelines and clarity for the public regarding the government's recognition of the existence of bitcoin and virtual currencies, namely through the policy of the Minister of Trade of the Republic of Indonesia Number 99 of 2019, and based on the rules of the Bappebti Regulation Number 5 of 2019 concerning Technical Provisions for the Implementation of the Crypto Asset Physical Market on the Futures Exchange.

The Discretionary Power Vested in the Judge in Evading the Principle of Pacta Sunt Servanda: A case study of pandemics in Jordanian and Egyptian law

The Discretionary Power Vested in the Judge in Evading the Principle of Pacta Sunt Servanda: A case study of pandemics in Jordanian and Egyptian law

THE IMPLEMENTATION OF PACTA SUNT SERVANDA PRINCIPLE AS A BASIS FOR MAKING MEMORANDUM OF UNDERSTANDING

Memorandum of Undersatanding is an initial agreement that regulates and provides an opportunity for the parties to conduct a feasibility study before arriving at a more comprehensive agreement. Making a Memorandum of Undersatanding requires the implementation of the principle of pacta sunt servanda to show that the parties have a binding agreement with each other. This research aims to find out how the implementation of pacta sunt servanda principle as the basis for making Memorandum of Undersatanding and how the legal position of Memorandum of Undersatanding. Using normative juridical legal research method with qualitative analysis. The results of this study conclude that the implementation of the principle of pacta sunt servanda as the basis for making Memorandum of Undersatanding is very important to ensure that the parties fulfill their promises and commitments and the agreement is respected and fulfilled by the parties. The legal position of the Memorandum of Understanding from the perspective of contract law is as an informal agreement that is not legally binding, but has strategic and diplomatic importance.

International Legal Instruments as the Rule of the Game for the Trade in COVID-19 Vaccine

<em>This article discusses international legal instruments that guide the trade in COVID-19 Vaccine. After efforts to discover and develop COVID-19 Vaccine which in fact are in favor of developed countries and high-tech countries as well as rich countries and high-income countries, and then this condition continues to have an impact on the distribution and trade stages resulting in difficulty in accessing the COVID-19 Vaccine fairly and equitably for developing countries and least-developed countries. Tracking international legal instruments from upstream to downstream have been needed to form a comprehensive mindset and find the right of rule of the game of trade in COVID-19 Vaccine. Finally, it was found that various of international legal instruments in form of international agreement that were closely related to the trade in COVID-19 Vaccine is already available, as well as being able to frame the interest of developing countries and least-developed countries on a reasonable basis, that is the occurrence of a national health emergency due to the COVID-19 disease. The principle of pacta sunt servanda must be used as a basic reason that binding all world countries to obey and comply with the contents of international agreement in accordance with the legal will of the competent authorities through the ratification process of that international agreement.</em>

The Concept of Fairness In The Principle of Decency Reviewed From Business Ethics In Business Contracts

Business agreements are often made only for the benefit of one party so that one party benefits and one party is harmed which only continues to put forward the principle of pacta sunt servanda. It is as if freedom in making a contract is final and absolute without anyone being able to intervene in the contract. This research has the basic purpose of reviewing business agreements judged by the implementation of business ethics as a reasonable consideration or not of a business agreement. The research method used in this study is a normative juridical method with a statute approach. Based on the results of existing research, the principle of propriety is closely related to the reasonableness of the contract agreement. Business agreements are basically formed not only based on consideration of legal provisions but also pay attention to business ethics. So business ethics can be applied as an indicator of the reasonableness of a business contract for the achievement of fairness.

VALIDITY OF STANDARD CLAUSES IN PRODUCT DETAILS ADVERTISED ON E-COMMERCE PLATFORMS IN INDONESIA

The existence of standard clauses contained in various types of agreements until now has always been a controversy over the validity of a contract or agreement. The Civil Code does not specifically regulate the standard clauses contained in the preparation of an agreement. This research is normative by using primary and secondary legal materials. The technique of collecting legal materials that the author uses in this study uses a literature study technique. The legal material analysis technique uses the deductive syllogism method. The results of the study indicate that as long as the agreement is made by the parties bound in the agreement, even though it contains standard clauses in it as long as it does not violate the applicable legal rules, the agreement remains valid and becomes law for those who make it. The best possible agreement is prepared by taking into account the principles of agreement formation such as the principle of freedom of contract, the principle of consensualism, the principle of pacta sunt servanda, the principle of good faith, and the principle of personality. Making an agreement that does not comply with subjective conditions can apply for cancellation of the agreement through the court and if it does not meet the objective requirements, then the agreement is null and void or deemed to have never existed.

Penerapan Asas Pacta Sunt Servanda Pada Perjanjian Lisan Antara Nelayan Pemilik Bagang Ikan Teri (PENJUAL) Dengan Pembeli Di Desa Tanggetada, Kecamatan Tanggetada

This study aims to analyze the Application of the Pacta Sunt Servanda Principle in Oral Agreements Between Fishermen Who Have Anchovy Bagang (sellers) and Buyers in Tanggetada Village, Tanggetada District. The formulation of the problem posed, How is the application of the principles of the agreement to the verbal agreement between fishermen who own anchovy bagang and buyers in the village of Tanggetada, Tanggetada sub-district and What are the legal consequences of not applying the principles of the agreement to an oral agreement between fishermen who own anchovy bagang and buyers, Type the study used the Normative-Empirical research method where the results showed that the application of the pacta sunt servanda principle from the buyer was not fulfilled where in the agreement between the seller and the buyer had agreed on a price of 500,000. but the buyer only paid 400,000. so that the buyer violates the agreement that has been made. Legitimate legal consequences based on Article 1388 of the Civil Code, namely all agreements made legally apply as laws to those who make them, an agreement cannot be withdrawn other than by agreement of both parties or for reasons stated by law. , and an agreement must be implemented in good faith. The consequences for buyers who violate the principle of pacta sunt servanda are giving compensation as stipulated in article 1246. an agreement cannot be withdrawn other than by agreement of both parties or for reasons stated by law, and an agreement must be carried out in good faith. The consequences for buyers who violate the principle of pacta sunt servanda are giving compensation as stipulated in article 1246. an agreement cannot be withdrawn other than by agreement of both parties or for reasons stated by law, and an agreement must be carried out in good faith. The consequences for buyers who violate the principle of pacta sunt servanda are giving compensation as stipulated in article 1246.

Specific performance and damages in Anglo-American and сontinental law

The article deals with moral and ethical factors of contract law influencing the choice between specific performance and damages as the main remedy. Development of the law of contracts depends on decision of three dilemmas: “deontology or utilitarianism”; “will theory or objective theory”; “pacta sunt servanda principle or its denial”. In the course of protection of the contractual interest the law of contracts tends to right-based or economic theory depending on decision of the dilemmas mentioned. The economic theory gives priority to claim for damages whereas the right-based theory to specific performance. The article reveals reasons why specific performance is not popular in the USA as well as examines specific performance as an equitable remedy. The subsidiary role of specific performance to damages is additionally disclosed with regard to the adequacy of damages criterion which has not yet been followed in continental law. The continental legal system determined balance between specific performance and damages on the basis of Roman legal procedure (cognitio extraordinaria), in operation during the post-classical period as well as the results of Roman law intellectualization represented by the doctrine of interest (F. Mommsen) whereby the creditor`s interest replaced by its equivalent after breach of contract. The aggrieved party is entitled to choose between damages or specific performance with a preliminary letter of formal notice (France, Germany) or without it (Russia).

Developing Economies, International Investment and Investor-State Arbitration: Recognition and Enforcement of Foreign Arbitration Awards in Nigeria

The purpose of this paper is to determine the extent to which Economic Development Agreements are amenable to arbitration as an instrumentality for the settlement of disputes arising between State Parties and private entities such as Transnational Oil Corporations (TNOC). Findings show that Economic Development Agreements are inabitrable and when awards are made, they lack finality because ownership of the subject-matter of such agreements inheres in the sovereign party and so within the public domain. Petroleum International Agreements (PIA) as a genre of Economic Development Agreements are ill-adapted to the Private Contract Model. The study also found that the principle pacta sunt servanda cannot apply absolutely under Petroleum International Agreements because supervening circumstances which render performance impossible may compel the review of the terms and conditions of the contracts in accordance with overriding public interest clausula rebus sic stantibus.

The Constitutional Obstacles before the Promulgation of the Rome Statute

July 17, 1998, can be considered as one of the most important milestones of the international judicial structure: it is the day when the Rome Statute of the International Criminal Court was adopted by 120 states out of 148. Article 86 of Statute explicitly states that „States Parties shall […] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” As in the case of every international treaty, the principle of pacta sunt servanda enshrined in Article 26 of the 1969 Vienna Convention on the Law of the Treaties states applies, which explicitly states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” As has been pointed out by the Permanent Court of International Justice, contracting states must make all the necessary internal measures which are required to fulfil its international obligations rising from a binding treaty. One could ask, why is this quite obvious argument important in the case of Hungary? Well, Hungary has ratified the Statute but still has not implemented it in its internal legislation. This can be considered as a serious constitutional omission, since if the Court would require the cooperation of Hungary – e.g. in the case of an arrest warrant – and it would not be able to fulfil it because of the lack of the internal legal norms, it would be considered as international legal responsibility of Hungary. In this article, I try to explore the reasons behind this omission and outline the possible solutions.

THE PROVISION OF UNSECURED PEOPLE'S BUSINESS CREDIT (KUR) BASED ON LAW NO. 10 OF 1998 (STUDY AT PT. BANK BRI PULO BRAYAN BRANCH UNIT I)

One of the attractive services for the MSME group is the existence of one of the banking services offered by PT. Bank BRI Pulo Brayan Branch Unit I Medan, namely the People's Business Credit (KUR) based on the Minister of Finance Regulation Number 135/PMK.05/2008 concerning the People's Business Credit Guarantee Facility (KUR). However, it is important to note that the implementation of Unsecured KUR has a high degree of risk, so that countermeasures are needed to avoid the occurrence of non-performing loans (NPL). The research method used is normative-empirical legal research. Normative research is carried out and based on written provisions or other legal materials, while empirical research is carried out with a sociological approach obtained from primary data whose samples are directly from the community as the first source through field research. The activity of providing Unsecured KUR by PT. Bank BRI Pulo Brayan Branch Unit 1 Medan is based on a legal agreement that has legal consequences by adhering to the Pacta Sunt Servanda principle by applying the 5C+7P+3R principle which aims to prevent non-performing loans (Non Performing Loans) in the future.