ANALISIS HUKUM MENGENAI PERJANJIAN YANG MEMUAT KLAUSULA TIDAK ADIL

Zulfina Susanti, Prof. Dr. Abdul Ghofur Anshori, S.H., M.H.

2014 | Tesis | S2 Magister Kenotariatan

This study analyzes the law of the agreement containing the unfair clause. This study aims to determine what circumstances shall be concluded as containing unfair clause, and; to determine if judges have right to state an agreement contains unfair clauses might be canceled or annulled by law. This research is a descriptive analytical research which describes and explains the results of the analysis of the research object systematically. In analyzing subjects, primarly, secondarily and tertierily legal refferences synthetized in normative stages by inventoring refferences and analyzed qualitatively. The results shows: (1). The circumstances can be used to determine an agreement containing an unfair clause or not, are: (a) the principle of good faith ( te goeder trouw , good faith ) as opposed to bad faith (te kwader trouw, bad faith); were equated with rationality and propriety in a public life. (b) The principle of proportionality that reflects the balance of the position between rights and obligations of the parties. (c) The abuse of state (van misbruik omstandigheden), which creates a standing position between the parties is not balanced and harmonious . (2) An agreement containing an unfair clause due to a violation against the principle of good faith , the principle of proportionality, and the abuse of state, the aggrieved party may take a lawsuit to the court to cancel the agreement. The court has right to cancel the agreements containing unfair clauses. This is in accordance with the principles of a court runs of justice .

This study analyzes the law of the agreement containing the unfair clause. This study aims to determine what circumstances shall be concluded as containing unfair clause, and; to determine if judges have right to state an agreement contains unfair clauses might be canceled or annulled by law. This research is a descriptive analytical research which describes and explains the results of the analysis of the research object systematically. In analyzing subjects, primarly, secondarily and tertierily legal refferences synthetized in normative stages by inventoring refferences and analyzed qualitatively. The results shows: (1). The circumstances can be used to determine an agreement containing an unfair clause or not, are: (a) the principle of good faith ( te goeder trouw , good faith ) as opposed to bad faith (te kwader trouw, bad faith); were equated with rationality and propriety in a public life. (b) The principle of proportionality that reflects the balance of the position between rights and obligations of the parties. (c) The abuse of state (van misbruik omstandigheden), which creates a standing position between the parties is not balanced and harmonious . (2) An agreement containing an unfair clause due to a violation against the principle of good faith , the principle of proportionality, and the abuse of state, the aggrieved party may take a lawsuit to the court to cancel the agreement. The court has right to cancel the agreements containing unfair clauses. This is in accordance with the principles of a court runs of justice .

Kata Kunci : hukum perjanjian, klausula tidak adil, wewenang pengadilan