Coup D’Etat Consumers’ Right Through Standard

Form Clause in the Form of Notary Deed

Prisilia Anggraini Evelyn Terisno

, Andrian Julius

, & Yuliana Angela

Universitas Airlangga, Surabaya, Indonesia

Universitas Airlangga, Surabaya,Indonesia

Keywords: Act, Notary Deed, Standard Form, Consumers’ Right, Law of Consumer Protection.

Abstract: When ensuring the significance of business people, the rights and obligations of each party have to be

defined under an agreement. Due to the complex process of making a complete and comprehensive contract,

for time efficiency, business people generally have formulated the agreed terms and conditions prior to

making the contract. In Indonesia, an agreement as mentioned above is called a standard form contract or

“Standard Clause Contract” based on Law Number 8 Year 1999 regarding Consumer Protection. According

to article 18, the Law of Consumer Protection states that the application of a standard clause requires

heeding some of the restrictions that are listed under the Law in relation to the objective of preventing

consumers who are not familiar with the law to incur losses. In Indonesia, for the agreement to have an ideal

value of verification based on Burgerlijk Wetboek article 1870, business people in general will ask for the

agreement to be taken to a notary to change its status to that of an authentic deed. Issues will arise if the

standard form contract between the business people and their consumers is initiated without the authentic

deed status. Therefore, the restriction in the Law of Consumer Protection article 18 could be applied.

However, when the standard form contract status has been changed into an authentic deed, the condition of

the Law of Consumer Protection article 18 can no longer be applicable. This issue arises based on normative

jurisdiction reviews whereby the terms and conditions of the standard form contract have to be concluded

by business people before the consumers agree to the contract. Nevertheless, authentic deeds, especially

notary deeds, often states, either implicitly or explicitly, that the whole contract formation is initiated in the

presence of the notary, and not made prior by business people. This fact is justified by the characteristic of

an authentic deed that has an ideal strength of verification in the justification by a notary as the general

officials if some events have actually taken place

1 INTRODUCTION

Under the provisions of Article 1233 of Burgerlijk

Wetboek, it states that alliances are born from

agreements and laws. In his book, Subekti states that

"The alliance born out of the agreement, is required

by two person or parties making an agreement,

whereas the legal borne of the law is held by law

beyond the will of the parties concerned” (Subekti,

2001). Many foreign companies that come to

Indonesia bring in various types of agreements, one

of which is the standard agreement. In this regard,

the positive law in Indonesia states emphatically that

the application of the standard clause in a treaty is a

limited act, namely the act regulated in detail in the

prevailing laws and regulations - the Consumer

Protection Act. According to Achmad Busro, the

reason is "based on the goals to be achieved by the

parties, as well as the need for the existence of rules

that can accommodate the interests and provide legal

protection for economic actors (the parties), then in

the development of the law of agreement, the

development of the treaty law requires effective,

simple, practical, and does not require long process

and time is possible in the principle of freedom of

contract”. One of the reasons for the enforcement of

this regulation is to protect the interests of

Terisno, P., Julius, A. and Angela, Y.

Coup D’Etat Consumers’ Right Through Standard Form Clause in the Form of Notary Deed.

DOI: 10.5220/0008820402810283

In Proceedings of the 4th International Conference on Contemporary Social and Political Affairs (ICoCSPA 2018), pages 281-283

ISBN: 978-989-758-393-3

281

consumers whose positions do not often benefit from

the existence of the standard class.

The standard clause is a breakthrough of the

parties to accommodate the need for rapid and

appropriate legal protection. However, the use of

standard clauses in an agreement is detrimental to

the customer, because the position between the

parties to the agreement is unequal to the other

party, therefore the Consumer Protection Act have

formulated articles that prohibit the application of

standard clauses. One of the characteristics of the

standard clause is that the clause must “first be made

by the business actor”, therefore to deceive the law,

the business actors make agreements with the

standard clause using notary deeds where the

character of the agreement is “made and settled

before me, the Notary”, because the character of the

notarial deed and the agreement itself cannot be

categorised as a standard agreement.

2 MATERIAL AND METHODS

2.1 Page Setup

The approach used in this journal is the statute

approach (approach using related legislation) and the

conceptual approach (approach using related legal

concepts)2. The statute approach is undertaken by

reviewing all of the laws and regulations relating to

the issue of the law being handled. Other than that,

this study also applies the conceptual approach,

which is an approach from the views and doctrines

that develop in the science of law. This approach is

important because an understanding of the evolving

views / doctrines in law science can be a foothold

for building legal arguments while resolving the

legal issues faced. The view / doctrine will clarify

any ideas by providing legal concepts relevant to the

problem.

2.2 Type of Research and Legal

Material

In writing this journal, the researcher used the

normative juridical research type. This means that

this research was conducted based on a literature

study to get the legal materials. To complement this

research, we used legal materials in the form of:

 Primary Legal Material; in this case, Law

Number 8 Year on Consumer Protection Act

and Burgerlijk Wetboek.

 Secondary law materials are legal materials

that provide an explanation of the primary

data; in this case, the authors obtained the data

from legal books, the scientific work of

scholars, newspapers, and internet sites.

 Tertiary Law Material is legal material that

supports both the primary law material and

secondary law material, including dictionarie,

3 RESULTS AND DISCUSSION

The terms of the agreement are a translation of the

Dutch language word overeenkomst. The word

overeenkomst comes from the word overeenkomen,

which means ‘agree’. So, the term agreement

contains an agreement in accordance with the

principle of consensualism. According to Subekti, an

"agreement is an event in which a person promises

to another or where the parties promise to do

something"3, (Subekti, 2001) Wirjono Prodjodikoro,

in more detail, gave the meaning of an agreement as

being “a legal relationship relating to property

between two parties, in which one party promises or

is considered promised to do something or to do

nothing, while the other party has the right to

demand the execution of the agreement”

(Prodjodikoro, 1986). In an agreement, there are

clauses governing the legal relationship including

the rights and obligations of the parties. One of the

most common types of clause is the standard clause.

The meaning of the standard clause can be seen in

the Consumer Protection Act. Standard clause are

any rules, terms and conditions that have been

prepared and determined first unilaterally by the

business actors as outlined in a document that are

agreement binding that must be fulfilled by the

consumer.

In the Indonesian Big Dictionary, the word

standard means a certain measure that is used as a

benchmark, while the standard word means a

benchmark that is applicable to the quantity or

quality specified5. Abdulkadir Muhamad states that

"standard or standard word means the benchmark

used as a benchmark or guideline for every

consumer who has a legal relationship with the

entrepreneur, which is standardised in the standard

agreement covering the model, formulation, and

size” (Abdulkadir, 2006). The standard clause is the

content or part of an agreement whereas the

agreement using the standard clause is called the

standard agreement. The standard agreement is an

agreement in which there are certain conditions

made by the creditor, generally referred to as the

adhesive agreement or the standard agreement. The

other party, the customer, is generally called the

ICoCSPA 2018 - International Conference on Contemporary Social and Political Affairs

282

"Adherent". He does not participate in contracting,

and he has no choice. In that case, the seller has a

monopoly position. If seen in the development of the

use of standard clauses, this is due to business

activities that require everything to be done quickly

and efficiently.

The standard clause is one of the outcomes of

article 1338 on the freedom of contract, which gives

freedom for the parties to determine its contents,

including if the content is a standard clause. But the

use of the standard clause has been banned in the

consumer protection law. To avoid the restrictions

set forth in consumer protection laws, the business

actors make agreements with the standard clause

using a notary deed where the character of the

agreement is “made and settled before me, the

Notary”.

According to law number 2 of 2014 on the

amendment to Law number 30 of 2004 concerning

the position of a notary public, article 1 point 1

regulates who is a notary. A notary is a public

official authorised to make the deed authentic and

who has the authority as referred to in the Act. One

of the duties of a notary is to create an authentic

deed where the notary pours the will of the parties

into a deed made by the parties before the notary.

The notary in this case acts only as a recorder and

not as a party to the agreement.

By using a notarial deed wherein the agreement

is made and settled before the notary by the parties,

it does not meet the definition of a standard clause

which requires that the agreement be made by one of

the parties. This legal loophole makes the provision

of a prohibition in consumer protection law difficult

to implement, therefore it is better to exclude the

definition of "standard clauses"/"non-standard

clauses” and to promote a generalisation of the

definition between both standard clauses and non-

standard clauses. It is very difficult, and even

impossible, to prove that a clause has been "made

first" or made on the spot.

4 CONCLUSIONS

There is a legal loophole in the application of a

ban as part of the standard clause to protect

consumers in the Indonesian legal system. Thus,

business actors can still violate any provisions of the

standard clause by bringing it to the notary and

creating an authentic deed. The legal loophole

means that the restrictions on the contents of the

standard clauses stipulated in the Consumer

Protection Act are not applicable because they do

not meet the "made first" element but are "made

together before the notary".

Suggestions to be given in order to tackle this

legal loophole are to revise the Consumer Protection

Act, and to remove the definition of the standard

clause and prohibition using a standard clause for

any agreement made with either party, in addition to

the consumer.

ACKNOWLEDGEMENTS

We would like to thank to Jesus and to everyone

who has provided support and assist us in

completing this scientific journal on time. We

realizes that there are still many shortcomings in this

journal, although it has been done as best as

possible. We hope this journal can be useful.

REFERENCES

Burgerlijk Wetboek;

Journal of Law Reform Master Program of Legal Science

Volume 11, Number 1, Year 2015 Faculty of Law

Diponegoro University 74 “Pengaturan Klausul Baku

Dalam Hukum Perjanjian Untuk Mencapai Keadilan

Berkontrak” Muhamad Hasan Muaziz1, Achmad

Busro2 Law Study Program of Law Faculty of

Diponegoro University

Law Number 8 Year 1999 regarding Consumer Protection

Act;

Law number 2 of 2014 on the amendment to Law number

30 of 2004 concerning the position of a notary public

Mahmud, Peter Marzuki, 2006, Penelitian Hukum,

Jakarta, Kencana Prenada Media Group

Muhammad, Abdulkadir, 2006, Hukum Perikatan, PT.

Citra Aditya Bakti, Bandung.

Panggabean, R.M. Faculty of Law Universitas

Bhayangkara, Jakarta, Keabsahan Perjanjian dengan

Klausul Baku;

Prodjodikoro, Wirjono, Asas-asas Hukum Perjanjian, PT.

Alumni, Bandung, 1986.

Subekti, 2001, Hukum Perjanjian, PT. Intermasa, Jakarta.

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