EKSISTENSI DAN AKIBAT HUKUM PASAL 1266 KITAB UNDANG-UNDANG HUKUM PERDATA DALAM PERJANJIAN TERHADAP DEBITUR YANG TIDAK AKTIF DALAM MELAKSANAKAN PERJANJIAN

VERA MOMUAT, YULIA (2014) EKSISTENSI DAN AKIBAT HUKUM PASAL 1266 KITAB UNDANG-UNDANG HUKUM PERDATA DALAM PERJANJIAN TERHADAP DEBITUR YANG TIDAK AKTIF DALAM MELAKSANAKAN PERJANJIAN. S2 thesis, UAJY.

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Abstract

This research aims at comprehending and analyzing the existence and the consequence or legal result of the implementation of Pasal 1266 of KUHPerdata to the agreement of the inactive debtor in his or her contract. This research uses a normative method, in which the writer scrutinizes and delves into the legal existence of the positive norms of Pasal 1266 KUHPerdata implemented to the legal consequences of the formal and valid contract of an inactive debtor. Hence, the approaches used here are conceptual ones taking benefit of the primary and secondary legal resources. The theoretical frame used in this research is the baseline of the theory of valid positive law. The result of the research shows that the legal consequences of Pasal 1266 KUHPerdata, when implemented to the valid contract of an inactive debtor, is that the inactive debtor could be classified or categorized as fail to fulfill his or her obligation (ingebrekesteling). Consequently, the contract falls into cancelation since the inactive debtor failed to do his obligation. In other words, he has made wanprestasi. The cancelation of the contract should be made through the legal decision in a court in which the creditor always has right to ask for debtor to repay the loss he had made. Accordingly, the existence of Pasal 1266 KUHPerdata, when implemented to a valid contract, contains existential truth of positive value since it gives certainty to all the parties in that contract. it is because of this reason, the parties when they are making contract, they should take into account the existence of this pasal. they could not put it aside or even ignore it. The justification of this is based on the legal and valid decision of Supreme Court number 650/PK/pdt/2012, February 19, 2013 showing the effective factors of Pasal 1266, after the demand of agreement cancellation, through the legal efforts of final review.

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