CONTRACT LAW IN A COMPARATIVE PERSPECTIVE

Suharnoko S.H., MLI1

Abstract
The development of Indonesian contract law has been inluenced by
enacment of new law, court verdicts and legal practices. It has been
inluenced by civil law and common law systems applied in other
countries as well. The enacment of Consumer Protection Act strenghtens
position of consumers against profesional seller. The Basic Agrarian Law
and its Implementation Laws improve certainty in ownership of land.
Courts have recognized, the doctrine of undue inluence, acceptance by
conduct, but they have not recognized pre contractual liability and have
not applied the doctrine of unjustiied enrichment in disputes regarding
illegal contract. As practical matter, the integration clause under common
law system stipulated in contract governed by Indonesian law, whereas
Internasional Convention on Sale of Good regarding this issue adopts civil
law system.

Keywords: contract law, civil law, common law, consumer law, agrarian
law.

I. Introduction
Contract in Indonesia are governed by either adat (customary law) or
the Civil Code. Generally adat law governs contracts between people of the
indigenous population in a village setting. Adat law was not applied for the
European or international transaction. For the European and foreign eastern
their transaction govern by the law of obligation stipulated in the Book III of
Civil Code. When member of these different groups of people concludes contract
with one another, a choice of law problem comes up and it can be resolved by
one of the following principles.
a) Intention of the parties. The parties made an explicit statement in the contract
that either adat law or the Civil Code applies in resolving of that legal issue.
The court may also make assumption that contracting parties impliedly has
made choice of law. For example when the court ind that, certain legal terms
and concept are recognized in one of two legal system the law of that system
would apply. Form and substance of the contract could also be a factor. For
example, if the said contract is never dealt with one of the system therefore
it is clear that the law of other system shall be applied. That a corporation,
whether owned by native or Chinese or European fall under the Civil Code.
This follow from the fact that corporations are basically western legal
entities.

1
Suharnoko is a lecturer of international Law, Faculty of Law, University of Indonesia. Obtained
Bachelor of Law (S.H.) from University of Indonesia (1983), Master of Arts in Legal Institution (MLI) from
University of Wisconsin (1996).

Year 2 Vol. 2, May - August 2012 INDONESIA Law Review