Principle of Proportionality as Solution for Beneficial Contracts

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Title : Hukum Perjanjian Asas Proporsionalitas Dalam Kontrak Komersial

(Legal Agreement with Principle of Proportionality in Commercial Contracts)

Author: Prof.Dr.Agus Yudha Hernoko,S.H., M.H.

Publisher: Prenadamedia Group

Print: July 2014 (Fourth Print)

Number of pages: 350

ISBN: 978-602-82730-13-6

A contract is basically from a difference of interest between multiple parties. From these different interests, business contracts try to unify these differences of interests. Therefore, a fair and balanced contract is expected to achieve iustitia commutative. However, in practice, there are still many contracts that substantially demonstrated iustitia commutative. This book gives examples of standard contracts commonly used in the community. These contracts are often found one-sided, unbalanced, and unfair. In this book, such contracts are analogous to “David vs. Goliath”, where two imbalanced forces are confronted.

There is a party with a strong bargaining position (due to capital, technology, or skill) and a party on a weaker bargaining position. Thus, the weaker parties often have to accept all the contents of the contract, because if they try to offer other alternatives, they will not get what they want. Thus, they have to accept or reject the contract (take it or leave it).

The imbalance phenomenon in the contract is increasingly prevalent today. For example, it can be seen in bank credit, which contains a clause that requires customers to comply with all bank regulations, both existing and future ones. In a lease purchase contract, for example, there is a clause that contains the obligation to pay in full if the rents overdue for two periods of payments. In a sale and purchase contract, for example, there is a clause that says that purchased goods cannot be returned. These clauses are proof of incriminating agreement.

To provide a solution to the problem, the principle of proportionality was born. The principle of proportionality is present to answer how to accommodate the interests of parties involved in a contract. With the principle of proportionality in agreement, the contract created is expected to be a contract that can accommodate the interests of parties, both rights and obligations appropriately. So, it is mutually beneficial to the parties (win-win contract).

At the beginning of this book, readers are presented with the concept of the proportionality principle in the contract. It describes the definition, function, relation of the proportionality principle with other principles in treaty law, such as freedom of contract, consensus, binding contract power, and the principle of good faith. After that, this book tries to analyze the application of proportionality principle, from pre-agreement, during negotiations, to clauses that reflect the principle of proportionality, such as agreements in construction services, franchising, leasing, guarantees, etc. This book also discusses dispute resolution which reflects the principle of proportionality. It is a complete and a must-have book for a jurist to understand the proportional agreement law holistically.

Author: Xavier Nugraha

Editor: Nuri Hermawan


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