Economic activities cannot be separated from the creation of agreements. In the current globalization era, agreements are very important to support trade and business transactions. An agreement is an event where one person promises to another person or where two people promise each other to carry out certain matters. 3 In Indonesia, the classic measure for determining the validity of an agreement is Article 1320 of the Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata Indonesia, hereinafter referred to as the Indonesian Civil Code), which is often known as the requirement of the validity of an agreement. The requirement for the validity of an agreement are (i) the consensus of those who intends to bind themselves (de toestemming van degenen die zich verbinden); (ii) the capacity or ability to conclude an engagement (de bekwaamheid om eene verbintenis aan te gaan); (iii) a particuar subject matter (een bepaald onderwerp); and (iv) a lawful cause (eene geoorloofde oorzaak).
In conducting this research, the researcher used the doctrinal research approach. Doctrinal research is legal research undertaken to examine primary literature or secondary data as a basis for the research by searching relevant regulations and literature related to the legal issue examined.
The Essence of the Principle of Balance in the Agreement
From old maxim “ad recte docendum oportet primum inquirere nomina, quia rerum cognition a nominibus rerum dependet” (for the proper understanding of a thing, it is well first to inquire into the names, because knowledge of things depends upon their names), it can be understood that in order to fully understand a concept holistically, it is necessary to first understand the definition of the concept. On this basis, to understand the nature of the principle of balance, it is necessary to first describe the definition of the principle of balance in an agreement. Rahma Firlli Febriani and Wiwin Yulianingsih define the principle of balance as a principle that requires the exchange of rights and obligations in proportion to the contracting parties. Aryo Dwi Prasnowo and Siti Malikhatun Badriyah define the principle of balance as the occurrence of equality of position between the rights and obligations of the parties in an agreement with the same terms and conditions (ceteris paribus), and no party dominates or exerts pressure on the other party.
Principle of Balance as a Basis for Annulment of Agreement in Indonesia
In the present civil law system in Indonesia, the existence of the principle of balance as the basis for the annulment of an agreement still creates problems. Such a condition happens because the principle of balance is not explicitly specified as a basis for the annulment of the agreement. As explained previously, principally, the concept of the validity of an agreement in Indonesia is determined by whether or not the conditions for the validity of the agreement are fulfilled. When the conditions for the validity of the agreement is re-examined, it can be dichotomized into two conditions, namely the fulfillment of subjective elements, which refers to legal competence and the willingness to be bound; and also the fulfillment of objective element, which means there exists a particular object and a lawful cause (see Article 1320 of the Indonesian Civil Code). Based on the analysis of the study, it can be concluded that the essence of the principle of balance in the agreement is the existence of a condition of the parties being equal or balanced in their rights and obligations. The principle of balance can be used as the legal reason for the cancellation of an agreement as long it is interpreted in the form of abuse of circumstances. Nevertheless, it is still needed an effort to formulate the principle of balance into Indonesian civil law, namely through the formation of a legal product of the Supreme Court Regulation as a short-term solution and revision of the Civil Code as a long-term solution.
Author: Faizal Kurniawan
Details of the research can be viewed here:
https://journal.unnes.ac.id/sju/index.php/lslr/article/view/55468
Faizal Kurniawan, Xavier Nugraha , Gio Arjuna Putra, Vicko Taniady, Bart Jansen (2022). The Principle of Balance Formulation as the Basis for Cancellation of Agreement in Indonesia, 6(1): 121– 156; https://doi.org/10.15294/lesrev.v6i1.55468
