Harmonize Indonesia Law of Contract

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THE HARMONY OF INDONESIA CONTRACT LAW WITH
COMMON LAW SYSTEM CONTRACT LAW

by
SAMUEL HUTABARAT
(Faculty of Law Atma Jaya Catholic University Indonesia, Jakarta) Email : samuel.hutabarat@atmajaya.ac.id/ Samuelhut@yahoo.com

Abstract

At the last time there are two things gives influence to Indonesia law of contract, first of all adat law and second Dutch rules. Adat law there are in each tribe or clan living on Indonesia archipelago were governed by their own customary which also included contract law, because before Dutch came to Indonesia in 1596, each tribe in daily activity had been set up by adat law. When Dutch come to Indonesia archipelago, they brought many rules related to their legal system and until now Indonesia still adopted their rules such as Civil Code (Burgelijk Wetboek), Commercial Code (Wetboek van Koophandel), these codes were practically Dutch translation from French Code Civil and Code du Commerce. The Civil Code was promulgated in Indonesia by Government Announcement on April 30, 1847, Government Gazette 1847 no 23 and applied since the 1st January 1848.

Nowadays, as a consequences from open system in Indonesia Law of Contract, that is gives a chance to everybody free to make any kind of contract, even that foreign contract. Foreign contract related to foreign investment or foreign trade, because Indonesia need foreign investor to increase economic growth. In any case, if we compare between the contract that is make concerning Indonesia Law of Contract based regulated on Civil Code and foreign contracts has a many difference. Therefore the harmonize between Indonesia Law of Contract with foreign contract that is usually used based on Common Law System needed to make contract can be enforce by each party or to prevent and minimize miss understanding between the party of contract that rise the conflict.

Introduction

Indonesia contract law is a model contract law under influence of two separate system, Indonesia Civil Code (Kitab Undang-undang Hukum Perdata)[1]and Adat law. Indonesia Civil Code comes from Dutch Law divided become four book there are[2] : a. Book one : Person

b. Book two : Property
c. Book three : Agreement
d. Book four : Proof and expiration
Dutch law became applicable in Indonesia till present because, whenever Dutch came to Indonesia, there is no law applicable in general over the Indonesia archipelago. Indonesia which is consist of thousand tribe or clan living on these island were governed by their own customary law and to avoid vacuum of law Indonesia government through Indonesia constitution 1945 arrange a rule in Article I of Transitional Provisions of constitution of 1945 proclaimed that all laws in force at time of declaration of independence would remain until replaced by new laws in accordance with constitution of 1945. This is ones reason Indonesia Civil Code or Indonesia Law derives Dutch Law applicable and it is often said that Indonesia Civil Law belong to the group of Continental Civil Law System as opposed to the Common Law System[3]. This description is not wrong to explain that much of Indonesia Law derives from Dutch, but the statement is not entirely right.

When the first Dutch ships landed in the Indonesia Archipelago, they did not find a juridical empty land. The land was full of legal institution. There was diversity of laws from the beginning of the days of VOC (vereenigde Oost Indische Compagnie) or United East Indian Company. From the beginning of Dutch colonization, the in habitants of the Indonesia archipelago have been divided for legal purposes into various population group. This distinction was not entirely based on racial differentiation, but also based on economic considerations[4].Act 163 of Indische Staatsregeling (IS)[5] divided Indonesia community into three basic population groups[6] :

1. Europeans this group includes :

a. Dutchment ;
b....
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