Law and Humanities
Quarterly Reviews
ISSN 2827-9735
Published: 08 August 2023
Implementation of Investment Agreements in Force Majeure Conditions Outside Natural Disaster Based on Private Regulation Books
Donny Warianto, Sytafrinaldi, Thamrin
Universitas Islam Riau
Download Full-Text Pdf
10.31014/aior.1996.02.03.68
Pages: 19-29
Keywords: Force Majeure, Private Regulations, Agreements
Abstract
The definition of force majeure as a situation that occurs beyond the control of the parties. However, there is a difference, namely in the first definition it is clearly stated that the failure to perform the agreement must cause a loss as a consequence of the failure to perform the agreement. The parties want to carry out the performance according to the contents of the agreement, but there are certain circumstances that make an agreement potentially unenforceable. These circumstances are commonly referred to as force majeure or force majeure. Circumstances where the parties or one of the parties cannot fulfill the performance not because of personal fault, but because of the nature that arises as a barrier to the fulfillment of achievements that result in certain sectors, especially the economy. Achievement can be interpreted as a debt that is an obligation that must be fulfilled by the debtor. Where the debtor is the one who performs an achievement in an engagement. Based on that, it can be understood that achievement is an obligation that must be carried out by a debtor arising from an engagement. Achievement can also be related to the fulfillment of obligations due to the consequences of the contract (contractual obligations). Thus, achievement can be interpreted to include contractual obligations and the fulfillment of legal obligations in general in the context of binding law. Achievement also not only includes obligations born due to contractual but also obligations born due to legislation. The interpretation of achievements like this is closely related to the legal system of ties that exist in the Civil Law legal system where ties are born and sourced from ties and legislation. The parties want to carry out the performance according to the contents of the agreement, but there are certain circumstances that make an agreement potentially unenforceable. These circumstances are commonly referred to as force majeure or force majeure. A situation where the parties or one of the parties cannot fulfill the performance not because of personal fault, but because of the nature that arises as a barrier to the fulfillment of achievements that result in certain sectors, especially the economy. So that this situation raises a situation for both parties, both the state of not being able to carry out the achievement and the state of not accepting the obligation of achievement from the other party which can make a loss for the party who will accept the obligation of the achievement, as long as these things for obstacles to carrying out achievements are true also have a legal basis and can be proven in reality, then there are no things that can make someone held accountable, but after the situation is gone, the party who is obliged to excel must carry out his performance, because in fact the achievement is a debt that must be settled with the obligations agreed upon by the parties.
References
A. Qirom Meliala, Principles of Agreement Law and Its Development, (Yogyakarta: Liberty, 1985), P.18. In Ghansam Anand, Principles of Freedom of Contract in Drafting Contracts, (Journal of Juridika: Volume 26 No.2, 2011, Airlangga University), P.92.
Achmad Ali, Revealing the Law (A Philosophical and Sociological Study), (Jakarta: Gunung Agung, 2002), P.82-83.
Cst Kansil, Christine St, Engelien R, palandeng and Godlieb N mamahit, Dictionary of Legal Terms, (Jakarta: Jala Permata Aksara, 2009), p.385.
Dominikus Rato, Searching for Legal Philosophy: Understanding and Understanding Law, (Yogyakarta: Laksbang Pressindo, 2010), P.59.
Dominikus Rato, Searching for Legal Philosophy: Understanding and Understanding Law, (Yogyakarta: Laksbang Pressindo, 2010), P.59.
Dwika, Justice from the Dimension of the Legal System, http:// Hukum.kompasiana.com, accessed on 07 January 2022, at 17.20 WIB.
Dwika, Justice from the Dimension of the Legal System, http:// Hukum.kompasiana.com, accessed on 07 January 2022.
Erni Herawati, Consensus in Agreement, (Jakarta: Rubric of Faculty Members, Bina Nusantara University, 2016), Pg.3.
Firman Floranta Adonara, Legal Aspects of the Engagement, Print I, (Bandung: Mandar Maju 2014), p.4.
Firman Floranta Adonara, Legal Aspects of the Engagement, Print I, (Bandung: Mandar Maju, 2014), p.4. .
Ghansam Anand, Principles of Freedom of Contract in Drafting Contracts, (Journal of Juridika: Volume 26 No.2, 2011, Airlangga University), P.93.
Amran Suadi, Settlement of Sharia Economic Disputes: Invention and Legal Principles, (Jakarta: Prenamedia Group, 2018), p. 115
Amran Suadi, Settlement of Sharia Economic Disputes…., p. 115
Hasnati, Linking Political Power and the Rule of Law, (Pekanbaru: Journal of law Republica Vol.3, No.1 of 2003, Lancang Kuning University), P.102.
Henry Pandapotan Panggabean, The Role of the Supreme Court Through Decisions on Legal Engagements, (Bandung, Alumni, 2008), p. 71.
http://radityowisnu.blogspot.com/2012/06/wanprestasi-dan-ganti-rugi , accessed on January 7 2022, at 11.41 WIB..
Kaya, Putu Bagus Tutuan Aris, Force Majeure Study Regarding Fulfillment of Commercial Agreement Achievements After the Designation of Covid-19 as a National Disaster, Kertha Semaya Journal, Vol. 8 No. 6 Years (2020), p. 895.
M.Yahya Harahap, Discussion of Problems and Application of the Criminal Code of Investigation and Prosecution, (Jakarta: Sinar Grfika, 2002), P.76.
P.NH Simanjuntak, Indonesian Civil Law 3rd Printing, (Jakarta: Kencana, 2017), p. 295 1244 and Article 1245 of the Civil Code, Lex Privatum Journal, Vol. IV/No. 2, (2016), p. 175.
Peter Mahmud Marzuki, Introduction to Law, (Jakarta: Kencana, 2008), Pg.158.
Rasuh, Dary John, Study of Force Majeure According to Article
Riduan Syahrani, Summary of the Essence of Law, (Bandung: Citra Aditya Bakti, 1999), P.23.
Ridwan Khairandy, Good Faith in Freedom of Contract, (Jakarta: the University of Indonesia, Postgraduate Faculty of Law, 2003), in Cristiana Tri Buddhaayati, Principles of Freedom of Contract in Indonesian Contract Law, (Salatiga: Satya Wacana Christian University, 2009), Pg.234 .
Ridwan Khairandy, Philosophical Foundation of Contract-Binding Strength, (Yogyakarta: Indonesian Islamic University, Journal of Law, No. Special Edition Vol.18, 2011), P.39-40.
Salim HS, Introduction to Written Civil Law (BW), Print VIII, (Jakarta: Sinar Graphic 2013), p.160.
Shidarta, The Morality of the Legal Profession An Offering Framework for Thinking, (Bandung: PT Revika Aditama, 2006), P.79-80.
Syafrinaldi, Abd Talib, Admiral, Implementation of Laws..., Pg.13.
Thamrin S, Legal Empowerment of Indigenous Peoples to Defend the Land..., Pg.302.
Umar Haris Sanjaya, Postponement of Debt Payment Obligations in Bankruptcy Law, Print I (Yogyakarta: NFP Publishing, 2014), P.57-58
Wulandari, Dini Ajeng, Debtor Default Due to Force Majeure (Natural Disaster) in Credit Agreement (Decision Study Number: 25/PDT.G/2010/PN.SMI), Thesis FH Unej, 2016, p. 16.