The Balancing Principles Enforcement in Electronic Contract: A

Case Study of Motorcycle Transportation Application Service

Provider in Indonesia

Ria Safitri

, Heru Subandono Notonagoro

, Khamami Zada

and Nur Habibi

Universitas Islam Negeri Syarif Hidayatullah Jakarta, Indonesia

Sebelas Maret University Surakarta, Indonesia

Keywords: Balancing Principles, Electronic Contract

Abstract: The electronic contract allows parties who are financially stronger to take actions that harm other weaker

parties in an unfair manner. The existing electronic standard contract is more considered to be likely to take

side to application service providers than to partners because the legislation has not been issued regarding

contract that are in line with the development of electronic transactions. This paper aims to stimulate

renewal in the regulation and treaty law practice that is more up-to-date and equitable. This paper uses a

sociological juridical approach and inductive and deductive analysis. The findings of the study show that the

balance of interests can prevent shift or displacement in wealth which is not justified and can cause the

unjust enrichment. Legal protection in the form of legislation is needed to achieve legal justice.

1 INTRODUCTION

The development of information technology has a

very broad influence in the economic field; there has

been a significant change in the economic system in

Indonesia, from the conventional economic system

to the digital economic system. Digitalization allows

business people to use electronic media to do

transaction with all ease, speed and efficiency. The

speed of technological development has not been

matched by the rules and regulations that support

and protect the parties involved in electronic

transactions based on e-commerce and e-business.

The legal protection in business transactions is very

important because of the rapid development of

internet-based business contracts.

Law No. 11 of 2008 concerning Electronic

Information and Transactions and Government

Regulation No. 28 of 2012 concerning Electronic

Systems and Transactions Implementation are not

enough to regulate the type of internet-based modern

contracts, considering all electronic contact in the

form of standard contracts that are vulnerable to

imbalances that lead to injustice. Therefore, it needs

to be studied more deeply related to balancing

principles enforcement in the electronic standard

contract. The emergence of electronic standard

contract is a form of initiative by parties that need an

electronic contract related to internet technology-

based business fields; this initiative does not conflict

with the principle of freedom of contract as stated in

Article 1338 of the Civil Code.

In conducting business activities, many parties

that have legal relations between one and another

use an agreement as an important instrument that

bonds the relationship. The legal relationship is then

agreed, initiated, confirmed and clarified by the

direct signing of the agreement, the submission of

the terms and conditions of the agreement and the

submission of the common practices commonly

carried out. The practice of implementing

agreements among parties in Indonesia factually is

more to approve or not to approve or to sign and not

to sign as a form of agreement. Thus, the agreement

made by the parties can also cause imbalances for

the parties; ideally the agreement should place the

parties in a balanced position. Agreements between

parties which is in imbalanced position cannot

guarantee justice.

Even though the physical form of electronic

standard contract is different from other written

contract, both have similarities, which are subject to

the contract law, fulfillment of the legal conditions

of the contract and in accordance with the principles

of the contract. In the General Provisions concerning

the contract which are regulated in the Civil Code,

Saﬁtri, R., Notonagoro, H., Zada, K. and Habibi, N.

The Balancing Principles Enforcement in Electronic Contract: A Case Study of Motorcycle Transportation Application Service Provider in Indonesia.

DOI: 10.5220/0009945024712477

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 2471-2477

ISBN: 978-989-758-458-9

2471

the contract can be in the form of unwritten and

written form. Article 1320 of the Civil Code

regulates the validity of the contract, an contract

must satisfy the following four conditions: 1) there

must be consent of the parties without coercion,

oversight or fraud, 2) there must be capacity; it is

made by a person who is capable of legal action, 3)

there must be a specific subject, 4) there must be an

admissible cause.

The substance of the standard contract also uses

standard clauses, the standard clause is specific

provision or section that have been prepared and

determined unilaterally in advance which must be

fulfilled by other parties. In practice the standard

clause aims at clearly defining the duties, rights and

privileges that each party has under the contract

terms. In practice the standard clause aims to protect

those who provide certain business products.

Most of the electronic contracts are in the form

of standard contracts that have been determined by

the application service provider for partners-drivers

and consumers, users can choose by clicking if they

agree or not clicking the terms of the contract if they

disagree. Although the use of e-standard contracts is

common in the world of internet-based business, it

still must not have conflict with the Civil Code and

Law No. 8 of 1999 concerning Consumer Protection.

2 THE BALANCING PRINCIPLE

IN CONTRACT

2.1 The Balancing Principle in

Contract

One of principles in the contract is the principle of

consensualism in which the agreement is deemed to

have been formed at the time of consensus between

the parties. This principle is contained in Article

1320 of the Civil Code. However, the formation of

consensus is often accompanied by the absence of a

balanced position from the parties. Therefore, in the

contract there is a principle that is important, namely

the principle of balance. This principle is not

regulated in the Civil Code which is the legacy of

the Dutch East Indies Government.

The balancing principle is the principle that

requires both parties to fulfill and implement the

agreement. Creditors have the power to demand

achievement and if it is needed, creditors can

demand repayment of achievements through the

wealth of debtors, but debtors also bear the

obligation to implement the agreement with good

faith.

The balancing principle is based on the ideology

which becomes the basic of Indonesian law.

Pancasila and the 1945 Constitution are sources of

values and reflect the perspective of Indonesian

people. The Indonesian government is the

representative and reflection of people and also

maintains the direction of the development of legal

order so that the benchmark of Pancasila and the

1945 Constitution value is maintained as an ideal

that is to be embodied every time.

The balancing principle meaning can be

understood as an ethical principle and a juridical

principle, ethically the balancing principle can be

interpreted in everyday language, the word

"balanced" (even-wicht) refers to the meaning of a

"state of sharing burden on both sides in a balanced

state. In the context of this research, "balance" is

understood as a state of silence or harmony because

none of the forces at work dominate the other, or

because not one element controls the other.

The idea of balance encourages balance spirit

(evenwichtsgeest) in customary law, an admission of

the equality of the individual's position with the

community in a common life. The "balance" of

inward, in character or soul, refers to the

understanding of that there is no mental turmoil

anymore, and the rapprochement or harmony has

been achieved between the desire and the ability to

fulfill it, or between emotional impulses and will.

The potential of human abilities consciously

manifested in the action of an action whose true

consequences are desired to appear or directed at an

improvement in living conditions. This means that

the word "balance", on one side, is limited by will

(which is raised by favorable considerations or

profitable situation), and on the other side, by belief

(of the ability to) manifest desired or consequences

results, within the limits of both sides this achieved a

balance that can be interpreted positively. In or

through a promise, a person psychologically

(psyche) places himself in a situation with the

conviction that "as a result of profitable situations"

logically can be strived for the desired outcome. Of

course these wills and beliefs must be experienced

as something that is truly worthy or logic.

Otherwise, if someone imagines a condition that is

"not feasible or illogical" (onredelijk), the risk that

arises is disappointment for those who have that

illogical shadow.

These situations bring us to the matter of

contractual attachments that are worthy of being

justified (gerechtvaardige). At the same time this

means that the promise between the parties will only

be considered binding as long as it is based on the

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principle of balancing relation between individual

interests and the public interest or the balance

between the interests of both parties as each party

expects it.

Then, the balancing principle as a juridical

principle can be explained that the principles of law

are not only useful for solving new problems and

opening new fields, but also it is necessary to

interpret the rules in line with the principles

underlying the rules in question. The principles are

very important role in interpreting and interpreting

the rules that can never fully cover all the problems

that may arise, it's not only when facing difficult

cases that we will return to the principle, but also in

facing of the application of rules in general, it will

play a role, even if it is only to just reaffirm the

meaning that is related or given to the rule, Smits

said. Regarding to the application of rules to certain

cases, therefore it is necessary to find a benchmark

based on the explanation and a description of the

rules that can be given from the background of the

principle, to then move on and reaffirm the meaning

related to the rule. A criterion must be found, which

is gained from where facts can be tested for their

relevance to contract law (it refers to Indonesian

contract law), so that each time the balancing

principle that underlies an agreement between the

parties can be a proper or fair juridical attachment.

Efforts in finding such criteria must begin by

sorting out which facts in the contract can qualify as

facts or conditions that give rise to legal engagement

which in turn can be assessed and tested in relation

to juridical attachments based on the balancing

principles. The balancing principle in addition to

having certain characteristics, it must also be

consistently directed to the truth of logic and

adequately concrete. Based on these considerations,

the idea developed that the principle of balance

could be understood as a principle that is proper or

fair and subsequently accepted as the basis for

juridical attachment in Indonesian contract law. For

this reason it is very important to clarify the

description of the origin of the principle of balance

and to explain how the characteristics and principles

of balance and answer the question of why this

principle should function as a justification and

juridical attachment to Indonesian contract law.

.The balancing principle is a new principle in the

formation of an contract in Indonesia that develops

from western civil law. Herlien Budiono argues that

there is a new principle in the law of contract,

namely the principle of balance.

The Freedom of contract definition and the

principle of Pacta sunt servanda in reality can lead to

injustice. The freedom of contract is based on the

assumption that the parties of contract have a

balanced bargaining position, but in reality the

parties do not always have a balanced bargaining

position. Standard requirements are always accepted

by the opposite party without reading these

requirements or knowing the contents in its entirety,

that the determination of the standard contract on its

use causes a very serious loss. An contract is a very

important aspect of business activities that is carried

out between individuals within a country as well as

inter-company relations that are cross national

borders. An contract exists with an contract between

at least two parties involved. It can be ascertained

that the contract is based on the freedom of

contracting the parties concerned. The principle of

balance cannot only be submitted its mechanism to

freedom of contract, the principle of balance must be

part of the principle of the law of contract. The

balance includes the making of contracts, the

contents of the contract and changes that may occur

in the future and the implementation of the contract.

In connection with business agreements, even

though it is based on an open system, but with

consideration of efficiency, effectiveness and best

practices, the majority agreement is made with

standard agreement prepared by the creditor.

Various business needs have available templates or

electronic agreement standards to then be signed by

the parties.

PT AKAB (Aplikasi Karya Anak Bangsa) is an

application-based company that operates in 50 cities

in Indonesia. The service categories are Go-Jek, Go-

Life, Go-Pay. Go-Jek consists of Go-Jek, Go-Ride,

Go-Car, Go-Food. Gojek provides transportation

applications that use motorbikes, so that PT. AKAB

makes an electronic agreement with the cooperation

partners namely motorcycle owners using fixed

templates. Such standard agreements are generally

made with instruments of application forms and

standard electronic agreement instruments.

Likewise, electronic agreements are made between

PT. AKAB and consumers of motorcycle gojek

users.

It is known that generally what is meant by a

standard agreement is an agreement that almost all

of its clauses have been standardized by the users

and the other party has basically no opportunity to

negotiate or request changes. Only a few things

which have not been standardized, for example

concerning the type, price, amount, color, place,

time and some other specific and agreed objects. In

other words, the standard form is not standardized

form but the clauses. Therefore, an agreement made

The Balancing Principles Enforcement in Electronic Contract: A Case Study of Motorcycle Transportation Application Service Provider in

Indonesia

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by notary deed, if it is made by a notary by clauses

that only takes into account clauses that have been

imposed by one party, while the other party has no

opportunity to negotiate or request changes in

clauses, the agreement made by notarial deed is also

a standard agreement.

In its development, the standard electronic

agreement has a negative effect on the debtor, which

is in an unbalanced position; there is a tendency for

exploitation from strong parties to weak parties such

as banks and customers. If such legal issues are not

immediately responded by law, then economic

power will be concentrated in certain groups, too

large economic concentrations can cause disruption

and inhibit economic freedom for individuals.

The standard agreement does not provide the

same bargaining position, for example in bank

lending, banks as lenders have the power to

determine requirements, but the dominant

bargaining position in making the agreement will

change if the credit funds have been disbursed, the

position of the bank as creditor weakens because the

funds have been controlled by the customers

(clinets) or debtor.

The provisions of an agreement may be

inappropriate or unfair when the agreement is

formed on an unbalanced relationship or condition.

When such irregularities or injustices occur in an

unbalanced party relationship then this condition is

called Undue Influence (inapropriate influence).

Whereas inequality occurs in an unbalanced state

(not relationship), then this situation is called

unconscionability (injustice).

The balancing principles is the starting point of

the contractual attachment principles which is the

justification of the binding power of an agreement.

The developed balancing principles here is a new

concept as extracted from of Indonesia's typical way

of thinking that is the principle of balance based on

real ideal rights factors which in turn is sourced from

a family perspective, help and mutual support.

Characteristics of national law are kinship, mutual

support, and mutual assistance, unity of formality,

and justice and legal certainty. The treaty which

embraces the principle of balance of course

emphasizes justice; justice is one of legal goals.

Legal objectives are not only justice, but also legal

certainty and benefits. It is appropriate that the

promises among the parties are considered binding

as long as it is based on the principles of balancing

relationship between individual interests and the

public interest or the balance between the interests

of both parties as expected by the parties.

2.2 Electronic Contract (e-Contract)

E-contract is any kind of contract formed in the

course of e-commersce by the interaction of two or

more individuals using electronic means, such as a

e-mail, the interaction of an individual with an

electronic agent, such as a computer program, or the

interaction of at least two electronic agent that the

programmed to recognize the existence of a contract.

The uniform computer information transaction act

provides rules regarding the formation, governance

and basic term of an e-contract. Traditional contract

principles and remedies also apply to e-contracts.

Many transactions and other forms of trade are

now conducted electronically, for example most

people will at least be familiar with Go-Jek

Aplication and on line shops. More and more

business is now done electronically, often with the

parties never physically meeting each other.

An electronic contract is a standard contract that

is designed, created, defined, duplicated and

disseminated digitally through a website unilaterally

by the contract maker (business actor) to be closed

digitally also by the closing of the contract. In

addition, there are also those who use the term on-

line contract (on-line contract), namely an

engagement or legal relationship conducted

electronically by integrating a network of computer-

based information systems with a communication

system based on networks and telecommunications

services (telecommunication based), facilitated by

the existence of a global internet computer network.

It also can be defined that e contract is an contract

between two or more parties that is carried out by

using computer media, gadgets or other means of

communication through the internet network.

Electronic contracts use digital data instead of

paper, as described in Law No. 11 of 2008

concerning electronic information and transactions,

Article 1 number 17, electronic contracts are

contracts between parties made through electronic

systems. Electronic system: a set of electronic

devices and procedures that has function to prepare,

collect, process, store, display, collect, send and

disseminate electronic information.

In the electronic standard contract, there are

several characteristics including: electronic contracts

can occur based on the internet, parties do not meet

face to face, standard clause contracts are made by

business actors, the contents of the contract cannot

be changed by the user. Electronic contracts are

included in the category of nameless contracts

(innominaat), namely contracts that are not regulated

in the Civil Code but exist and are carried out in the

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community. Likewise with the electronic standard

contract, it appears and is used in society because of

the development of information technology and the

demands of transaction and business needs.

However, it must remain subject to Article 1320 of

the Civil Code concerning the legal requirements of

the contract and also has the legal power as a law for

the parties who make it (pacta sunt servanda: Article

1338 of the Civil Code).

The plenty frequency and routine transactions

become the reason for PT. Gojek to prepare a

standard electronic agreement so that it can be filled

and agreed quickly by potential partners and

immediately decided by providing electronic

facilities. Such conditions allow the exploitation of

PT. Gojek to motorcycle owner partners, it is

important to reinterpret the existence of the principle

of freedom of contract to adjust to the development

of electronic contracts. The principle of contractual

freedom should no longer be understood in terms of

absolute, but relative. Contractual freedom can be

applied when the position of the parties is balanced

or at least in the legal setting.

In Go-Jek application for partners, a partnership

contract is attached, one of the contents of the

contract is as follows: this cooperation contract is

effective from June 1, 2017. Hereby the partners

give approval for the terms and conditions listed in

this contract by way of clicking on the electronic

agreement on this contract, accessing and using the

go-jek application, the partner will be interpreted as

agreeing to be bound by requirements, which is a

contractual relationship between partners, Go-Jek

and PT. AKAB. Therefore, after the partner clicks,

the obligation in the contract must be adhered to

along with every policy in terms of the requirements,

and the use of the Go-Jek application. PT Go-Jek

has another contract with PT. Paket Anak Bangsa

(PAB) and PT. Dompet Anak Bangsa (DAB).

Partners (drivers) if they agree to a contract with PT.

Go-Jek, they are automatically bound by a contract

with PT. PAB in connection with each postal service

carried out by partners. They also contracted with

PT. DAB relates to every use of electronic money

systems in service providers that are carried out

through applications. If the partner does not agree

with automatic attachment with PT. PAB and PT.

DAB, the partners may not access or use the Go-Jek

application. If the partner does not approve PT. Go-

Jek, he can immediately stop using the application.

Based on the example above it can be concluded

that electronic agreements make conventional

agreements face to face to be an act of clicking. By

clicking on the agreement electronically, accessing

or using it is interpreted as agreeing to be bound by

the terms, including attachments to other parties

connected to PT. Go-jek. This electronic contract

also includes approval if there are changes and

additions to the terms and conditions that will come;

the notification is delivered electronically as well.

PT Go-Jek grants some rights to partners in the form

of limited licensing, but non-exclusive, non-sub

licensable, irrevocable and non-transferable for

partners' interests and personal use.

C. Relations and Legal Effects for Parties in e-

Contract

One of the companies engaged in providing

applications for motorcycle transportation services is

PT. Aplikasi Karya Anak Bangsa (AKAB) as the

owner of the Go-Jek trademark. The legal

relationship between PT. AKAB as an entrepreneur

of application services with drivers is a partnership

relationship based on a partnership contract. The

contract is in the form of an electronic standard

contract (e-standard contract). The contract is about

partnership relations, the legal protection for driver-

partners is not legal protection as in the labor

contract, but protection as a party in a partnership

contract.

Legal relation in the form of exchange of

services between service providers and service users

is done by exchanging data through media that is

intangible or virtual (internet). Regulations

regarding electronic contracts (e-contracts) are set

forth in Government Regulation No. 82 of 2012

concerning the Implementation of Electronic

Systems and Transactions Article 47 paragraph (2)

describes the legal requirements for electronic

contracts in accordance with those stipulated in the

Civil Code Article 1320. Electronic contracts made

with standard clauses which must be in accordance

with laws and regulations.

3 DISCUSSION

An electronic standard contract carried out by a

Limited Liability Company (LLC) of motorcycle

transportation application service provider is a

partnership contract, it doesn’t contain elements of

orders and wages., an contract that is implemented

between businesses to need each other to obtain

profits. In its development this contract raises

various contracts including network-based contracts

(e-contract). Partnership contracts cause personal

responsibilities related to transportation means, for

The Balancing Principles Enforcement in Electronic Contract: A Case Study of Motorcycle Transportation Application Service Provider in

Indonesia

2475

example, replacement of spare parts is the

responsibility of the driver partner. While the LLC is

responsible for providing application services in the

form of technical support for partner-drivers related

to consumers.

The electronic standard contract (e-standard

contract) object is information or non-physical

services, where the party communicates through the

internet network. As an example, an contract made

by PT. AKAB with the driver-partner, after making

a communication then the electronic standard

contract is sent, if it has been approved by the

partner, PT. AKAB will send information or services

that are the object of contract through the internet.

The contract is accompanied by a license of click

wrap and shrink wrap, 8Software downloaded

through the internet is usually sold with a click wrap

license. The license will appear on the buyers' screen

or monitor at the first time of software installation.

Prospective buyers are asked about their willingness

to accept the license terms, they are given an

alternative accept or don't accept option.

The contract is a very important matter because

the parties did not meet directly, so arrangements are

needed regarding when the contract is considered to

be occurred. The theory that can be used to

determine the existence of an contract is the will

theory that an contract occurs when the willingness

of the recipient is stated.

In essence this electronic contract is a legal

agreement, as long as agreed by the parties in an

electronic media system that has been certified as

provided for in articles 13 - 16 of the Electronic

Telecommunications Information Law (ETI Law).

This is a preventive effort in terms of law so that

people do not cheat by making a statement that

electronic agreements are not valid because they are

not stated specifically by the law related to the

contract. In the case of an electronic agreement, the

parties in making a contract must both provide and

request fulfillment of their rights and obligations to

other parties so that the fulfillment of needs is

obtained. This is different from conventional

contracts that emphasize negotiation and agreement

of the party making the contract. Regarding when

the time request and offer of the ETI Law stipulate

that the time of delivery is when the information has

been sent to the destination address, while the time

to receive information is when the information

enters the electronic system under the recipient's

control. The difference in time is very likely to occur

in the electronic transaction process that is followed

by electronic contracts, because that happens

depending on the quality of the electronic network

facilities. Information recipients are responsible for

having an initial monitoring of the electronic system,

whether it has been notified or not.

The exoneration clauses in the partnership

contract between PT. AKAB, Owners of trademarks

Go-Jek, Go-Car, Go Food and other application-

based services, Owners of trademarks Go-Jek, Go-

Car, Go Food and other application-based services,

with the partner-driver cause the contents of the

contract followed by its implementation to be

unbalanced. This is the basis for PT. AKAB to free

itself from responsibility for losses suffered by the

driver-partner in relation to the use of the Go-Jek

application by the driver, as well as losses suffered

by consumers in relation to transportation services

carried out by the driver-partner through the Go-Jek

application. The exoneration clause puts the partner-

driver in a weak position compared to PT. AKAB as

the owner of Go-jek trademark. Go-Jek is a social-

minded technology company that aims to improve

the welfare of workers in various informal sectors in

Indonesia. GO-JEK activities are based on 3 core

values: speed, innovation and social impact.

Thus the electronic standard contract does not

fulfill the principle of balance in the contracts

contents and implementation. The legal

consequences of the exoneration clause in the

electronic standard contract are null and void

because it contradicts Law No. 8 of 1999 concerning

Consumer Protection. Contracts that are contrary to

the law do not meet the objective requirements of

the legal contract namely causal law, which results

in the contract being null and void. Considering that

the legal conceptual of the electronic standard

contract is still relatively new, new latest provisions

are needed as positive laws which focus on:

A balanced relationship between business

actors, users (partners) and consumers,

especially the provision of opportunities and

broader negotiation space for partners as

well as consumers in the electronic standard

contract offered by business actors.

2. Enforcement of three clicks in the deal of

electronic standard contract, namely:

Click 1 prospective partner see the display

of the offer

Click 2 prospective partners give acceptance

of the offer

Click 3 requirements for confirmation and

approval from PT. AKAB to partners about

receiving acceptance from prospective

partners.

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The directive ensures that persons who enter into

on line contracts will have certainty as to the legal

consequences of the contract and will further create

and environment of trust. There is legislation that

contains consumer protection and also that

documents be in writing and the directive that such

contracts are valid if they are made through the

internet.

The opportunity to harmonies the rules on

contract forming arose with the requirement to

harmonies the requirement for online contracts. The

problem in this regard is that there is no uniformity

in Indonesia in relation to the formation of electronic

contract.

Agreeing contracts electronically can be a risky

business if the parties don’t get the right process,

readers to ensure electronic contracts are safe and

secure. It seems, that there’s less and less formality

in all aspects of business these days. However aided

by advances in technology, this informality is

creeping into the world of contract law, and this can

cause problems if one of parties not careful.

4 CONCLUSION

Electronic standard contracts must be agreed upon

by the parties and if there is a change in the contents

of the contract there must be a deal as a form of the

balancing principles enforcement in determining the

contents of the contract. In the case of exoneration

clauses, for example: agree with any changes that

will occur in the future, it needs a regulation that

specifically regulates the exoneration clause in the

form of an electronic contract so that application

service providers as contract makers still pay

attention to balancing principles as a sign that it does

not violate the interests and does not cause harm or

loss to other parties.

Indonesia did not go far enough to harmonies

the moment of contract and directive that deals with

online contracts. Only provide for the procedure of

contracting online. The differences between the civil

law systems still exist and the citizen of different

member state will still not be sure when the contract

has come into existence. Snijders argues that policy

of the directive supports the civil law receipt theory

and the offeree chooses the medium and is the best

positioned to insure against risks. There should be

restrictions to include certain standard clauses in

electronic contracts to prevent misuse of

circumstances by parties who have a stronger

position which will ultimately harm consumers.

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