INTERNATIONAL CONTRACTS BASED ON THE PRINCIPLE OF
FREEDOM OF CONTRACT
Introduction
A contract is an agreement between two or more people between which there are
promises or mutual promises that apply as a form of reciprocity, recognized by law or whose
implementation is recognized as a legal obligation for the parties who make it. In accordance
with the above definition, it can be said that the important factors of a contract / agreement are
the existence of an agreement (agreement) and the rights and obligations to carry out
something (contractual rights and obligations).2 This definition is in line with the definition
of a contract according to Black's Law Dictionary, namely a contract is an agreement between
two or more people that creates an obligation to do or not do a certain action.
The rights and obligations arising between the parties based on the contract made and
agreed by the parties, which must be performed and fulfilled so as not to violate the rights of
the other party. This applies not only to national contracts, but also to international contracts.
An international contract is a commercial agreement made between parties where the parties
come from different countries, so that based on the world legal system that is applied, there
may also be differences in the laws that can be applied to the legal actions they take.
In the field of international business, contracts play a very important role. This is
evident from the increase in cross-border transactions. Because it involves differences in the
State which directly also allows for differences in applicable law, the making and
implementation of international contracts is regulated by national contract law. This
international contract law is enacted to homogenize the implementation of international
contract making, so that there is no confusion in the event of a dispute or dispute between the
parties bound by the international contract made. International contract law is part of
International Civil Law which regulates the provisions of transactions between parties in
business matters originating from two or more different countries through a contract /
agreement made upon agreement by the parties bound in the business transaction.
The characteristics of this international contract are that it is made by parties of different
nationalities, there is a foreign element and the applicable law transcends national borders.
The preparation of an international contract in which the parties who make it have different
nationalities, just like making a contract in general that the contract they make must be based
on the agreement of the parties.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
Discussion
There are several principles that apply to the making of international contracts. One
principle that plays a significant role is the principle of freedom of contract. The basis for the
implementation of the principle of freedom of contract is to give freedom to the parties each
party making a contract/agreement, so that the point of departure is the interests of the
individual as well. Thus it can be understood that individual freedom gives him the freedom
to contract.
The applicability of the Freedom of Contract principle is also very instrumental in the
drafting and formation of international contracts. With the existence of this principle of
freedom of contract, the parties can freely make contracts, with no one to make contracts,
make contracts about what and all matters related to their contracts, as long as it does not
violate the law, decency, good faith, and others. This principle of freedom of contract means
that the freedom of the parties to agree on matters relating to the contract must be done
without coercion, and in good faith. This means that the freedom of contract for international
contracts is not an absolute freedom, but a limited freedom that is limited by the interests and
rights of other parties.
The principle of freedom of contract requires that parties are free to contract. This
fundamental principle grew and developed in tandem with the practices of merchants or
businessmen (Lex Mercatoria). UNIDROIT The UNIDROIT Principles of International
Contracts 1994). Article 1.1 states that "The parties are free to enter into a contract and to
determine its content." In the explanation (commentary) of this article, the UNIDROIT
principles state that based on this principle, every entrepreneur has the right to decide freely
with whom they will offer their goods or services and with which third parties they will obtain
the products they need.
In addition to the above, the recognition of the principle of freedom of contract is also
included in Article 27 - Free dom to contract, Convention for the Unification of Certain Rules
for International Carriage by Air - Montreal, May 28, 1999. This convention governs the
international carriage of passengers, goods or cargo by aircraft, the essence of which is that
the convention recognizes all matters agreed in the contract of carriage.
In addition to the recognition of this principle contained in various international treaties,
recognition of this principle also comes from the ICC gang association. ICC sees this
principle as important to create legal certainty for parties in trade transactions.
In the aforementioned ICC statement, it is stated that the primary objective of
commercial law is to promote legal certainty for transacting parties. The ICC endorses
freedom of contract as a general principle that should drive decisions regarding choice of law
and forum. As the basis for all commercial law, a contract embodies a private agreement
between parties, formalizing their intention to be bound by the terms of the contract as if it
were the law between them. This means that in international transactions the principle of
freedom of contract applies to create legal certainty for the parties to the contract. The
statement also shows that the ICC will also support decisions on choice of law and forum.
This principle of freedom of contract means that anyone has the right and freedom to
make an agreement in accordance with his wishes and interests. This principle of freedom of
contract includes:6
Free to make agreements or not make agreements;
free to make agreements with whomever they wish;
free to make agreements of any kind;
free to make agreements about anything;
is free to determine how the agreement is to be executed.
However, in its development, the use of the principle of freedom of contract is
increasingly limited, because there have been many agreements or contracts both regionally
and internationally which are due to the need and need for speed in contract making, so many
companies both in running their business and in terms of labor have used standard contracts or
standard contracts. Therefore, there are limitations for the other party to be able to negotiate
the contents of the standard contract or standard contract.
The use of standard agreements makes the principle of freedom of contract less or even
unenforceable. In detail, the freedoms that are less or cannot be judged are :
The freedom of the parties to determine the form of the agreement is because standard
agreements are always in writing;
The freedom of the parties to determine the contents of the agreement because in
unilateral, reciprocal and patterned standard agreements the contents of the agreement
have been determined in advance by one of the parties, organizations or experts;
The freedom of the parties to determine the manner in which the agreement is made is
due to the fact that for all forms of agreements the standard manner of making the
agreement has been determined by one of the parties, an organization or experts.
When viewed from the above, things that still have freedom for the parties to
determine, namely In this case, it is a matter of whether the parties want to make an
agreement or not and related to who the parties make the agreement or contract.
In relation to the increasingly limited realization of the principle of freedom of
contract due to the use of standard agreements, Anson states as follows. "In a few of this fact,
it is quite clear that freedom of contract is now largely an illusion."8 According to Anson, it is
said that in accordance with the facts on the ground, that freedom of contract is now largely
an illusion, that is, this principle has shifted only as a thing in the sky that does not happen in
reality.
The principles of international contracts are formulated to further ensure a sense of
fairness, equality, and certainty for the parties. Although the principles of international
commercial contracts are only set out in the form of soft laws, in the case of the UNIDROIT
Principles of International Commercial Contract 2010, they are very much followed by
various large and small countries in the world. China, Russia and even the United States have
made the UNIDROIT Principles of International Commercial Contract 2010 Contract as the
basis for the development of its contract law provisions.9
The principles of international contracts mentioned above can be used as guidelines in
making other international contracts, including international contracts in the field of sale of
goods and or services, financial transactions, transportation, employment and other fields.
There are several types of international contracts as follows:
Memorandum of understanding (MOU)/ Letter of Intent
This memorandum of understanding is a type of contract that is usually made in general
and is made at the beginning of cooperation. This form of contract is made before there are
further contracts that are promised in this initial contract. This form is usually called a
precontractual docu ment or precontractual instru ment.10 This MOU is an agreement made
to open other contracts with the same subject and field, but with different objectives. Usually
this type of contract is used for complex contracts, which cannot be done with just one
contract, so an initial contract is needed to open up further agreements.
Contracts in the Field of Sales of Goods and Services
Contract for Sale and Purchase of Goods / Sa les of goods
This form of contract is the most common form of contract, especially in trade transactions. A
sale and purchase contract is an agreement between a seller and a buyer on an object of sale
and purchase. The sale and purchase referred to here is a sale and purchase at a certain price.
Barter and countertrade
Barter and Countertrade are modified forms of trade transactions. Barter: "an exchange of one
thing for another with each thing serving as payment for another", or the exchange of one
thing as payment for another. So the exchange of goods is :
- there is more than 1 (one) object;
- These goods are often exchanged for one another;
- does not require a means of payment in the form of money.
Countertrade, on the other hand, is a buying and selling transaction in which two parties
jointly decide to buy different goods, but the goods are owned by each of the counterparties.
Thus there is a meeting of interests where each party owns the goods sought by the other, and
vice versa. This will minimize the number of that must be paid because the prices between
goods are equal or balanced.
The difference between a service contract and a sale and purchase contract is the object. If the
contract of sale and purchase of goods is in the form of an object, while the sale and purchase
of services that are traded is in the form of services that produce a work or final result, which
in its production uses certain skills. One example of a service contract is a Management
Contract. Management Contract is where a foreign company provides services in the form of
expertise to another party for the purpose of exploiting a work (e.g. exploitation of natural
resources).11
Contracts in the Field of Representation This form of contract is a business transaction in
which the seller (principal), in one country sells or his commodity through his intermediary,
namely a distributor or agent to the buyer (consumer) in the territory of that country.12 The
forms in this field are generally practiced mainly by companies that sell their products abroad.
However, there is no binding legal instrument in this field of representation. Because there is
no uniformity in the clauses of the contract, so that the rights and obligations depend on
agreement of each party. Then the ICC took the initiative to create a model contract in the
field of representation.
Contract in the field of Franchise
This franchise contract or fran chise is a mechanical business transaction created by
business people to develop their business by cooperating with other parties by allowing other
parties to use their trademarks with the same operational systems and procedures as the
franchised brand owner.
Contracts in License and Technology Transfer
Contracts in the field of licensing and technology transfer have no uniformity in the
preparation of contract clauses, so they still depend on the agreement of the parties. The
absence of binding legal instruments is partly because companies or industries that have
private rights attached to technology are highly protected. Efforts made by the ICC (Inter-
national Chamber of Commerce) to formulate a contract model by forming a working group
(ICC Task Force) to develop a contract model in this field.
Contract in the field of Joint Venture
This Joint Venture or joint venture is carried out by contract is an effort form to carry
out a common goal.
Black's Law Dictionary defines a Joint Venture as a venture between two or more
persons in a particular project. The elements contained in this Joint Venture are (1). The
existence of an agreement (agreement); (2). The existence of a (common) goal; (3). Profit/loss
agreement; and (4). Each is entitled to be given the authority to supervise the project.
Economic Development Contract
An economic development contract or also sometimes called a development contract is
a form of contract entered into by the state or a state-owned enterprise (company) with a
foreign private company, usually a multinational company.
Construction Contract
Infrastructure development has a significant impact on the life of a country.
Development activities in the infrastructure sector continue to grow. In the development of
infrastructure, it is necessary to regulate the procedures for its operation, which requires a
long period of time. In addition, new customs are also developing in construction contracts.
Standardization in construction contracts is also taking place not only on a national scale, but
also on a global scale.
Contract of Carriage
Transportation contracts are needed because of the increasing need for transportation.
This increasing need for transportation must be supported by rules that ensure justice, benefit
and certainty for the parties, both passengers, carriers, and parties bound by the transportation
process. Transportation life is growing rapidly in developing and developed countries. The
need for transportation is very important and has implications for the legal certainty of the
parties using it. Regulations regarding standard clauses used in the international world are
also enforced, the rules are quite developed following the needs and developments of the
times. In connection with this right, it is necessary to adjust the national contract to the needs
of international contracts.
Conclusion
The use of the principle of freedom of contract in agreements, not only applies to
agreements made nationally, but also applies to international agreements. The freedom of
contract that is applied is a form of freedom of contract that is not absolute. This is because
that freedom of contract is also limited by matters including the agreement of the parties, the
capacity of the parties, relating to the object of the agreement and also the reason for making
the agreement, including that it must not conflict with other applicable regulations.
