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description Journal article public Diversi

Kajian Yuridis Pengesampingan Pasal 1266 dan Pasal 1267 Kitab Undang-Undang Hukum Perdata sebagai Syarat Batal dalam Perjanjian Kredit Perbankan

Rocky Marciano Ambar, Budi Santoso, Hanif Nur Widhiyanti
Published 2017

Abstract

Banks in the redit agreement use more standardized credit agreements, the use of standard contracts in the banking credit agreement is based on 2 (two) things, (1) The existence of unbalanced position (berganing position) between banks and the debtor, the bank has a more dominant position than the debtor. (2) There is an understanding of the principle of freedom of contract absolutely and indefinitely so that the bank has absolute freedom to determine the form and content of the agreement. So banks can freely to determine the form and contents of the agreement included in the clause of the terms of void wanprestasi arranged to include mengesaampinkan Article 1266 and Article 1267 Civil Code in the agreement. Whereas the provision of Article 1266 of the Civil Code provides that in the event that the revocation of the treaty must be requested by the court and the judge through the decision of the court may determine the types of compensation for the parties. Based on the background, then as for the formulation of the problem of writing is (1). Whether the inclusion of clause 1266 and Article 1267 of the Civil Code in the credit agreement of the banking system has fulfilled the principle of equilibrium and justice. (2) What is the juridical implication of the inclusion of clauses which exclude Article 1266 and Article 1267 of the Civil Code in the credit agreement pertaining to the debtor's right in the process of settling the interpretation as a condition of cancellation of the agreement. The research method used is normative juridical research. The result of this research is the waiver of Article 1266 and Article 1267 of the Civil Code which regulates the waiprestasi void in the agreement and the types of indemnity is contrary to the principle of fairness and the principle of equilibrium. The principle of justice according to Rawls is that it is unfair to sacrifice the right of one or more persons only for the sake of greater economic gain and even justice must be understood as fairness, in the sense of "equality of positions and rights" not in the sense of "commonality of results" people, in other words justice as intended is justice that provides a guarantee of equality and rights between the bank as a creditor with the customer as a debtor in the credit agreement of the bank. As for the juridical implication of the inclusion of clauses that exclude Article 1266 and Article 1267 of the Civil Code of credit agreement relating to the debtor's right in the process of settling the interpretation as a condition is to remove the legal rights as well as the debtor's legal efforts in seeking justice and the equilibrium position which is not dominant by the decision maker due to the unbounded imbalance of the parties to the agreement. The act of wanprestation brings consequences to the adversity of the disadvantaged party to prosecute the defendant to indemnify, so that by law it is expected that none of the parties will be harmed by the default.

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