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11070-Article Text-39901-1-10-20230227
11070-Article Text-39901-1-10-20230227
Christopher Martin1)
1)
Faculty of Law and Justice, University of New South Wales
Email : christophermartinnnn@gmail.com
Abstract
Peer To Peer (P2P) Lending is the result of the development of digital
technology which is a solution for people who need funds quickly without
having to go through complex procedures such as banking institutions. In
P2P lending activities, there are several parties, namely Lenders,
Organizing Companies, and Borrowers who are related to law. Based on
POJK Number 77/POJK.01/2016 concerning Information Technology-
Based Borrowing and Borrowing Services, in P2P Lending there are two
kinds of legal relationships, one of which is the legal relationship between
the Lender and the P2P Lending Company as outlined in the Electronic
Loan Distribution Contract. In making the contract, the application of the
principle of balance is important in order to create balance for the parties to
the contract. This research uses a descriptive normative legal research
method. Secondary data in the form of primary, secondary and tertiary legal
materials were collected using library research techniques. Data analysis
was performed using qualitative data analysis methods. The study results
shows that the Electronic Loan Distribution Contract Number
PPP/PID/2021/07/Lending Transaction TD29585580030360 between
Lenders and P2P lending companies does not fulfill the overall balance
principle.
It was found after looking at the three aspects used as test factors for the
application of the principle of balance in the form of the actions of the parties, the contents of the contract, and
the execution of the contract. The principle of balance is met in the first (actions of the parties) and third
(execution of the contract) aspects. Regarding the second aspect, namely the contents of the contract, the author
finds that the principle of balance has not been fully implemented, because the contract is in a standard form
made unilaterally by a P2P lending company for Lenders. Failure to apply the principle of balance in a contract
can result in the contract becoming null and voidable or null and void.
Keywords : Peer to Peer (P2P) Lending, Balance Principle, Contracts, Electronic Lending
INTRODUCTION
Financial technology or in short fintech is a combination of technology and financial features
or can also be interpreted as innovation in the financial sector with a touch of modern
technology. One of the financial technologies is Peer to Peer (P2P) Lending. This technology
brings lenders and loan recipients (borrowers) together in a platform created by the organizing
company. One company that embraces this technology is Asetku.
In Indonesia, Peer to Peer (P2P) Lending is also known as Information Technology-
Based Borrowing and Borrowing Services. As regulated in Article 1 Number 3 of POJK
77/POJK.01/2016, it is stated that Information Technology-Based Borrowing and Borrowing
Services is the provision of financial services to bring together lenders and loan recipients in
1
H. Budiono, Asas Keseimbangan bagi Hukum Perjanjian Indonesia: Hukum Perjanjian berdasarkan
Asas-asas Wigati Indonesia , (Bandung: Citra Aditya Bakti, 2015), Page. 304
Based on the two types of legal sources above, a common thread can be drawn, that the
source of contract law also comes from the same source of law, both from material sources of
law, as well as formal sources of law in the form of laws, jurisprudence, international
agreements, and customs. The legal source of agreements (contracts) originating from the law
itself, is essentially a legal source of products produced by the President together with the House
of Representatives.
2
Sudikno Mertokusumo, Mengenal Hukum: Suatu Pengantar, (Yogyakarta: Liberty, 2005), Page. 82-83
3
Ibid.
4
Ibid.
5
Salim HS, Hukum Kontrak: Teori & Teknik Penyusunan Kontrak, (Jakarta: Sinar Grafika, 2019), Page.
15-17
Conditions for the Validity of the Agreement and its Legal Consequences
Article 1320 of the Indonesian Civil Code states a valid agreement must satisfy the
following four conditions [5], such as:
1. There must be consent of the individuals who are bound thereby;
2. There must be capacity to enter into an obligation;
3. There must be a specific matter;
4. There must be an admissible cause.
The first and second requirements are referred to as subjective requirements because it
relates to the subjects or parties in an agreement. Meanwhile, the third and fourth requirements
are referred to as objective requirements because it relates to the objects of the agreement itself
[4].
If the four requirements above are fulfilled in making the agreement (contract), the
agreement will have legal consequences, namely binding on the parties, applies as law for the
parties, and cannot be withdrawn unilaterally [4].
The third requirement from legal incapacity, where married women are not allowed to
enter into agreements (contracts) was declared no longer valid, after the issuance of the
6
Subekti, Hukum Perjanjian, (Jakarta: Intermassa, 2014), Page. 17
7
Ibid.
8
M. Darus, Kompilasi Hukum Perikatan, (Bandung: Citra Aditya Bakti, 2016), Page. 82
9
Abdulkadir Muhammad, Hukum Acara Perdata Indonesia, (Bandung: Citra Aditya Bakti, 2017), Page.
10
10
Patterson, “The Delivery of a Life-Insurance Policy”, Harvard Law Review, vol. 33, page. 33, 1919
METHODOLOGY
Mechanism of Peer to Peer (P2P) Lending
Loan recipients usually register on a peer to peer (P2P) lending platform created by the
organizer by uploading all the documents needed to apply for a loan, for example an Identity
Card (KTP), financial reports within a certain period, and the purpose of borrowing funds. Loan
applications can be accepted or rejected by the organizer. If the necessary requirements are met,
then the loan application along with the interest rate application will be entered into the peer to
peer (P2P) lending marketplace application/platform made by the organizer [2]. On the other
hand, if rejected, the loan recipient usually has to correct matters relating to the reason for the
refusal, for example due to blurry National Identity Cards (KTP) or incomplete documents.
Lenders or Lenders (lenders) who intend to lend money in the context of investment,
can browse data regarding the amount of the loan offered, the interest rate, the tenor (term) of
the loan, the borrower's profession and the purpose of the loan uploaded by the loan recipient
on the platform marketplace peer to peer (P2P) lending created by organizers to serve as a
consideration for lenders to lend money. If the lender (lender) finds a prospective loan recipient
with good criteria, the lender (lender) can choose to lend funds to the loan recipient. Please
note, that lenders (lenders) should only lend money to loan recipients who have a high credit
score[12].
11
H. Budiono, Loc. Cit.
12
Ilhami Bisri, Sistem Hukum Indonesia: Prinsip-Prinsip dan Implementasi Hukum di Indonesia, (Jakarta:
Raja Grafindo Persada, 2014), Page. 124-134
13
Slawson, “Standard Form Contracts and Democratic Control of Lawmaking Power,” Harvard Law
Review 84, no. 3 (1971), Page. 529
Legal Remedies for Lenders Against Peer To Peer (P2P) Lending Companies for
Unapplying the Principle of Balance
The purpose of the contract is to achieve a balance between individual and individual interests,
as well as individual and public interests. In determining whether there is an imbalance at the
time of making a contract, the principle of freedom of contract must be considered and
respected. Because even if the contents of the agreement are unbalanced and burdensome to
one of the parties, the parties still agree to carry out the agreement, in essence the agreement
cannot be contested, as long as the agreement (contract) does not violate the public interest14.
In the opinion of the author, the Electronic Loan Distribution Contract Number
PPP/PID/2021/07/Lending Transaction TD295855880030360 does not interfere with the public
interest, so that the objective conditions of the agreement have been fulfilled and a balance has
been created between individual interests and public interests. On the other hand, according to
the author's opinion, the balance between individual interests and other individuals in the
contract has not been created. Because the making of this standard agreement only involves one
party, without the other party, so this violates the subjective requirements regarding
consensualism which must be realized in negotiations in making contracts.
The party receiving the contract, in this case, is the Lender (lender) can make several
legal efforts to restore the balance in the contract, such as:
1. Re-negotiation with the Peer to Peer (P2P) Lending Company as the party making the
standard contract;
2. Resolving this imbalance at the National Arbitration Board as referred to in Article 11
of the Electronic Loan Distribution Contract Number PPP/PID/2021/07/Lending
Transaction TD295855880030360.
14
Herlien Budiono, Op. Cit., Page. 487
CONCLUSION
The principle of balance is a universal legal principle contained in contract law in Indonesia. It
requires a balance between the parties in the contract regarding the actions of the parties, the
contents of the contract, and the agreement implementation. The principle of balance is essential
because it functions as the foundation of positive law and the critical test tool for the positive
law system. The Electronic Lending Contract Number PPP/PID/2021/07/Lending Transaction
TD 29585580030360 has not fully implemented the principle of balance because the contract
is a standard contract made unilaterally by a peer to peer (P2P) lending company. Standard
contract is generally enforceable in both civil law country (Indonesia) and common law country
(USA), although some standard/exoneration clauses are prohibited by the Indonesian Law
Number 8 of 1999 on Consumer Protection. It is prohibited because it might bring parties into
an unfair position in the contract.
Failing to apply the principle of balance in a contract can lead to several legal
consequences, such as the potential for claims by lenders who suffer losses and the imposition
of sanctions. Besides that, the imbalanced contract could lead to an unconscionability situation
which opens opportunities for abuse of authority. Last but not least, the imbalanced contract,
clearly has the potential to be canceled by law. Lenders can take legal action against peer to
peer (P2P) lending companies that do not apply the principle of balance in Electronic Lending
Contracts. The legal remedy is in the form of renegotiating the contract with a peer to peer
(P2P) lending company, as well as resolving the contract dispute at the Indonesian National
Arbitration Board (BANI) which is the choice of forum for the parties listed in the contract.
REFERENCES
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