PERLINDUNGAN HUKUM BAGI PIHAK YANG MENGALAMI PENYALAHGUNAAN KEADAAN DALAM PEMBUATAN PERJANJIAN

WIJAYA, ARIES (2008) PERLINDUNGAN HUKUM BAGI PIHAK YANG MENGALAMI PENYALAHGUNAAN KEADAAN DALAM PEMBUATAN PERJANJIAN. S2 thesis, UAJY.

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Abstract

This thesis aims to find out how is the legal protection for Indonesian people if they experience undue influence when made a contract, and how is the Indonesian positive law should be changed to anticipate any undue influence when made a contract. This is because the rules of the contract law in Indonesia that is still oriented in old BW inherited by the Dutch colonial era is not yet accomodate the legal concept of undue influence on the made of contract, whereas undue influence on the made of a contract in this era is very potential to occur. This thesis is a normative legal research by studying many legal literature and legal rules from domestic and foreign country. This thesis is using comparative law approach with another countrys, such as the legal rules from Netherland, USA, England, Australia, and Singapore. The result of this legal comparison with those countrys will be the basic to determine how is the law in Indonesia should be arranged to give the legal protection for a party that is suffering a loss because of the undue influence in the made of a contract. The result of this research shows that in those countries there is a positive legal rules that is explicitly forbid a contract being made with undue influence. A contract that was made with undue influence can be avoided, the judges in those countries even can directly declared that the contract is void without considering the interest of the loss party if the judge is considering that the contract being made was really unconsionable or unfair. BW that act as the directive of the contract law in Indonesia indeed doesn’t forbid explicitly of any undue influence in the made of a contract, however the legal protection for the party that is suffering a loss because of the undue influence in the made of a contract is still exist. A contract that was made with undue influence can be avoided by proceeding a charge through the court. The consideration of the contract can be avoided is because of there is a defect of the will on the agreement that was made. Judge can make yurisprudence to fill the empty of act that regulate about undue influence in Indonesia by considering the doctrines from the law experts about it

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