CONSUMER PROTECTION IN E-COMMERCE
TRANSACTION CONTRACTS BASED ON INTERNATIONAL
TRADE LAW
1.0 Introduction
At when now development Technology Information Technology, The development
of Information Technology has resulted in a wide variety of services (features) of existing
telecommunications facilities, as well as increasingly sophisticated information technology
products that are able to integrate all information media. But ironically, the dynamics of
United Statesn society, which is still growing and developing towards an industrial society
and information society, still seems unfamiliar to accompany the development of existing
technology. With the ability of information technology networks and access that is growing
very rapidly and in the end business transactions are carried out in the communication
network. Public networks have the advantage of cost and time efficiency. In accordance
with the nature of public networks that are easily accessible to everyone, this makes it a
weakness for the network.
The role of Electronic Commerce in international trade at this time is quite rapid
development, this is because it is very efficient and effective so that operational cost
calculations can be reduced. In addition, thanks to technological support, it can also be
done technically very easily and practically. An integrated network system that moves in
an on line networking management system accelerates the flow of transactions and
circulation of assets for intra business actors on a global scale that crosses territorial
boundaries (Jurisdiction). However, fraud is also often committed by irresponsible people
such as using stolen credit cards (carding), they use other people's credit cards to make
transactions, this results in losses to many parties, such as the company that owns the
merchandise, the bank that issued the credit card, and most importantly the name of the
United Statesn nation which has become bad because it is accused of being a den of cyber
thieves. If we look at articles 1320 BW and 1338 (1) BW regarding the validity of
agreements and the principle of consensuality, it can be drawn substantially to be able to
accommodate and adopt the substance that exists in the pattern of electronic commerce
actors into legal force. But also when viewed from a juridical perspective there are several
essential things regarding the rights and obligations of the interrelated parties.
United States in 2008 has issued a Law on Electronic Information and Transactions,
namely, Law No.11 of 2008 concerning Information and Economic Transactions, which
basically provides sufficient protection for economic transactions via the internet carried
out within the jurisdiction of the Republic of United States, but do not forget, in the world
of the internet is not only limited to the country of United States, but there are no clear
boundaries anymore for a country.
If we make transactions through agreements in cyberspace only based on trust,
sometimes there can also be defaults in e-commerce, and it is very difficult to prove in
court and if it happens between countries then which legal basis will be used in resolving
the dispute it is still a big question at this time, indeed we are more benefited by the
existence of e-commerce because of low costs and more time saving but behind all that
there are problems that we must find a solution.
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
The unclear legal relationship between e-commerce actors, of course one of whom
acts as a consumer, leads to the condition of unprotected consumers. It is appropriate that
consumers, especially the last consumer as the biggest target in e-commerce transactions,
receive protection from various harmful business behaviors of producers. There are several
problems for consumers that can be highlighted due to unclear legal relationships in e-
commerce transactions. First, regarding the use of standard clauses. As we know, in most
transactions in cyberspace, consumers have no other choice but to just click the icon
indicating their agreement to what is stated by the producer on its website, without a fair
position for consumers to determine the contents of the clause. Second, how disputes are
resolved. The parties may be subject to judicial jurisdiction in different countries. While
the debate on the jurisdiction taken when resolving disputes in e-commerce is likely to be
quite long, as long as the determination of when and where the e-commerce agreement
occurs has not yet found a consensus. In addition, there is also a need for a special dispute
resolution system and mechanism for e-commerce transactions that is effective and
inexpensive. This is also related to the privacy of consumers. An IT practitioner Arianto
Mukti Wibowo once pointed out that the use of cookies in some browsers such as
Microsoft's internet explorer has allowed the system on the website to recognize customers,
and even shopping patterns made by the customer without the customer realizing it. For
example, for consumers who have made several book purchases at amazon.com, the site
will try to create a pattern to recognize the type / topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the amazon
website, the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is where
the privacy intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited.
DISCUSSION
Contract
Contracts are essentially binding laws and have legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract law is a
translation of contract of law, while in Dutch it is overeenscomstrecht. Friedman (2001)
defines contract law as: "A body of law that regulates certain aspects of the marketplace
and governs certain types of agreements."
Some other definitions of contract law generally do not discuss the stage at which
the contract is made and executed. The United Statesn Encyclopaedia (in Salim, H.S.,
2003) examines it from the aspect of its regulatory scope, namely the agreement and bond
of legal citizens, as stated in Article 1348 of the Civil Code. It seems that this definition
equates the meaning between a contract (agreement) and an agreement, even though the
two are different. Contract (agreement) is one of the sources of engagement, while consent
is one of the conditions for the validity of the contract, as stipulated in Article 1320 of the
Civil Code.
It is more appropriate if we base it on the opinion of Van Dunne (1990), a Dutch
civil law expert, who does not only examine from the contractual side, but also pays
attention to the previous stages. What is meant by the previous stages is the precontractual
stage which is the offer and acceptance stage and postcontractual which is the
implementation of the agreement. A legal relationship is a relationship that gives rise to
legal consequences. Legal consequences, namely the emergence of rights and obligations.
Rights are in the form of enjoyment, while obligations are in the form of burdens.
From the above opinions and definitions of contract law, the definition of contract
law is as follows:
"The entirety of legal rules that regulate legal relations between two or more parties
based on an agreement to cause legal consequences"
Thus, the elements listed in contract law are as follows:
Existence of Rule of Law
Rules in contract law are divided into 2 (two) parts: written and unwritten. Written
contract law contracts are legal rules contained in legislation, treaties, and
jurisprudence. Meanwhile, unwritten contract law rules are legal rules that arise,
grow, and live in society (concepts derived from customary law).
Existence of a Legal Subject
The legal subject in another term is rechtsperson, which is defined as a supporter of
rights and obligations. The legal subjects in contract law are creditors and debtors.
Creditors are people who owe money, while debtors are people who owe money.
Existence of Achievement (Legal Object)
Achievement is the right of the creditor and becomes an obligation for the debtor.
Achievement according to Article 1234 of the Civil Code consists of 4 (four)
things:
give something
do something, and
not doing something
Agreed Word
Article 1320 of the Civil Code stipulates 4 (four) conditions for the validity of an
agreement. One of them is an agreement (consensus). Agreement is the conformity
of statements of will between the parties.
Legal Effects
Every agreement made by the parties will have legal consequences. Legal
consequences are the emergence of rights and obligations. Rights are a pleasure and
obligations are a burden.
Freedom of Contract
Principles of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an agreement, but
basically it aims to achieve legal certainty, legal order, and justice based on the principle of
consensualism (relating to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
The principle of freedom of contract, as analyzed in Article 1338 paragraph (1) of the
Civil Code, which reads: "All agreements made legally shall apply as laws for those
who make them". This principle of freedom of contract gives the parties the
freedom to :
to make or not to make an agreement
enter into an agreement with anyone
determine the content of the agreement with anyone
determines the form of the agreement, which is written or oral.
The principle of consensualism, as in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the validity of an
agreement is the agreement of both parties. The principle of consensualism is
generally not held formally, but simply by the agreement of both parties. Here, the
agreement is the conformity between the will and statements made by both parties.
The principle of Pacta Sunt Servanda, is the principle of legal certainty as a result
of an agreement. This principle can be concluded from Article 1338 paragraph (1)
of the Civil Code which reads: "Agreements made legally shall apply as laws". In
addition, this principle also states that other parties (judges or third parties) must
respect and may not intervene in the substance of the contract made by the parties,
just like a law.
The Principle of Good Faith (Goede Trouw) This principle can be summarized in
Article 1338 paragraph (3) of the Civil Code which reads: "The agreement must be
carried out in good faith". This principle of good faith is the principle of the parties,
namely the creditor and debtor must carry out the substance of the contract based
on trust or firm belief or good will of the parties. This principle of good faith is
divided into 2 (two): relative good faith, where people pay attention to the behavior
of the parties the actual behavior of the person or subject. Whereas absolute good
faith, the judgment lies in common sense and justice, and the assessment of
circumstances made with objective measures (impartial judgment) according to
objective norms.
Personality Principle This principle is a principle that determines that a person will
perform and or make a contract only for the benefit of an individual, as in Article
1315 of the Civil Code which reads: "In general, a person cannot enter into an
obligation or agreement other than for himself", and Article 1340 of the Civil Code
which states that: "Agreements are only valid between the parties that make them".
However, these provisions have exceptions as introduced in Article 1317 of the
Civil Code, which states: "An agreement may also be made for the benefit of a third
party, if an agreement made for oneself, or a gift to another person, contains such a
condition". This article constructs that a person can enter into an agreement for the
benefit of a third party.
Meanwhile, Article 1318 of the Civil Code does not only regulate agreements for
themselves, but also for the benefit of their heirs and those who obtain rights from them.
When compared to the two articles, Article 1317 of the Civil Code regulates agreements
for third parties, while Article 1318 of the Civil Code regulates agreements for the benefit
of third parties:
self,
his heirs, and
people who acquire rights
Freedom of contract is an "individual freedom", the parties are given the freedom to
organize themselves based on their interests where the role of the Court is only to
implement. Equitable freedom of contract is strongly supported in order to achieve
objectives that emphasize the need for stability, certainty and consistency.
There are 3 aspects of value to determine if a contract is unfair.
There is an imbalance in "Bargaining Power".
A contract that is affected by an imbalance in bargaining power is to leave excessive
profits to one party. An imbalance of bargaining power can also occur where unfair
benefits are extracted from less educated or weak-minded parties or parties who are
financially insufficient. No one should take advantage of an unfair contract made in
circumstances where the other party is under economic or social duress.
Form of Contract - Standard Contract
Under standard contracts the weaker party in need of merchandise or services is often not
in a position to study with a view to obtaining better terms. The sovereignty of the parties
is neglected. There is a need for lawmakers and courts to regulate some contracts that
compromise the fundamental principles of freedom of contract.
Public Order
This is the 3rd reason where "unfair contract" is legitimately and legally questionable.
There is no precise definition of "Public Order". Matters, by reason of public order,
which may render a contract void can be divided into 5 (five) groups namely: in respect
of objects which are unauthorized by common law or regulation; objects which are
harmful to good government whether in the field of domestic or foreign relations;
which interfere with well-established judicial proceedings; harmful to marriage and
morals; and economically contrary to the public interest.
E-Commerce
Electronic Commerce, by experts and business people tried to formulate its
definition from the terminology of E-Commerce (Electronic Commerce). In general, e-
commerce can be defined as any form of trade transaction (trade of goods and services)
using electronic media. It is clear, apart from what has been mentioned above, that these
commercial activities are part of business activities ("e-commerce is a part of e-business").1
The legality of a contract or agreement in Electronic Commerce is a relatively new
juridical phenomenon for United States. In a legal perspective, an obligation is a legal
relationship between legal subjects in which one party is obliged to an achievement while
the other party is entitled to the achievement. Based on Article 1233 of the Civil Code, the
existence of an obligation is born due to an agreement or due to a law. Furthermore, in
article 1320 of the KUHPerdt. it is explained that the conditions for the validity of an
agreement include Subjective Conditions and Objective Conditions. Subjective conditions
include the existence of (1) Agreement, and (2) Capacity (acting in law) to make an
agreement. Meanwhile, the objective conditions include (3) a certain thing (the object must
be clear), and (4) a halal cause (not contrary to law, decency and public order).
In Law No.11 of 2008 concerning Information and Economic Transactions, it is
also explained that Electronic Transactions are legal actions carried out using computers,
computer networks and or other electronic media, so that for jurisdiction in United States,
it already has a strong legal basis, it is just how the law enforcers will apply in the field.
When we talk about e-commerce transactions, of course the basis is the contract, in English
law if there is a contract with foreign elements, then the law used in resolving disputes is
the proper law, according to Dicey's view, "the term proper law of cantract means the law
or laws by which the parties intended, or may fairly be presumed to have intended, the
contract to be governed"2 . This is known as the subjective view and the emphasis is on the
intention of the parties. There is also another view of electronic transactions, which is the
objective view espoused by Lord Denning. He argued that "the proper law of the contract
depends not so much on the place where it is made, nor even on the intention of the parties
on the places where it is to be performed but on the place with which it has the most
substantial connection". Boisssvain v Weil (1949). From the above view
We can draw conclusions about the subjective and objective elements of a contract, that the
settlement of the contract agreement between the two parties in finding a place of settlement
depends on the initial agreement of each party
Contractual Aspects of International Trade
International Trade Contracts (in general) based on UNCSIG
International trade contracts are generally governed by the United Nations in
Contracts for International Sale of Goods (UNCISG) 1980 and 1986. United States has not
ratified the 1980 UNCISG, but it is worth considering as a platform for a new international
sale and purchase convention. This convention governs contractual issues relating to
international sale and purchase contracts. This convention actually only regulates the issue
of buying and selling between business to business (B2B), while the e-commerce that we
discuss here is a business relationship between Business to Consumer (B2C). In the
convention there are several principles that can be adopted in this paper. among others are:
That the contract does not have to be in writing from, but the contract can be in
another form. Based on these rules a contract can also be in the form of data but in
UNCISG it has not been specifically regulated regarding e-commerce. Based on
the above, an international buying and selling contract that uses e-commerce based
on international law is legally binding or has legal force.
The CISG covers international contract formation material that aims to eliminate
the need to show the law of a particular country in international trade contracts and
to facilitate the parties in the event of a conflict between legal systems. The CISG
applies to contracts for sale of goods made between parties whose places of trade
are in different countries article (1(1)). Thus what determines is the place of trade
and not the nationality. In the context of e- commerce, the Merchant's seat is the
legal seat listed on his digital certificate. A contract made under the CISG or which
is subject to the CISG must be interpreted based on the principles contained in the
CISG and if the CISG has not specified, based on the rules of international civil
law. In addition, the CISG accepts trade customs and habits between the parties as
a basis for interpreting contractual provisions. As in United Statesn contract law,
good faith is the main principle in the interpretation of the main provisions and
implementation of the contract.
Contracts under the UNCITRAL model law on Electronic Commerce
This model law regulates e-commerce in general, starting from the definitions used,
the form of documents used in e-commerce, the validity of the contract, the time when the
contract occurs, besides that this model law also regulates the carriage of goods. The
approach taken in this model law is that an information cannot be said to have no legal
force, because the information is in the form of data message. Based on the above
approach, a data messaages regardless of its form or format can be said to have power. This
approach will create certainty in the future if there is a new form/format of data messages.
This approach will also cause an agreement made with e-commerce to have legal force.
GUIDEC (General Usage for International Digitally Ensured Commerce) from ICC
GUIDEC is a guide created by the International Chamber of Commerce for the use
of a method that will ensure (ensured) the existence of an electronic document/data in its
international use. This guideline uses the term ensured to distinguish it sign terminology in
terms of signing in/signature to a document. GUIDEC is intended to support the
development of e-commerce by providing certainty for the application of signatures in
electronic documents. This guide will explain various terminology / terms in the
UNCITRAL model law on e-commerce such as what exactly is the meaning of
electronically signed messages. The meaning of signing here is not done physically, but
requires an electronic device.
Based on the above, every form of international trade contract using e-commerce
should be based on regulations that specifically regulate e-commerce. The time of contract
formation must concern when the agreement occurs, especially if this agreement occurs
without the presence of the participants / parties. We analogize transactions on the internet
as transactions carried out without the presence of the actors in one place (beetwen absent
person).
If a dispute arises about the contract in the future, it is important to know which law
(the law of which country) will apply to the contract. A good e-commerce contract will
explicitly state which law applies to the contract, but sometimes this choice of law is not
stated. In general, in determining which law will apply, it is based on the principle of
jurisdiction of the country which has the closest relationship and has a close connection
with the contract. The place where a contract is entered into is a matter to be considered in
determining which law applies to the contract, although it is not an essential factor. A
contract made using instantaneous telecommunication means may be deemed to be under
the jurisdiction of the place where the offeror receives acceptance. Where the postal
acceptance principle is applied, the place of acceptance is the place where the acceptance is
sent which will determine which law applies to the contract. To prevent uncertainty as to
which law will apply to a contract, in making a contract either in the form of an offer or
acceptance the parties should explain where, when it is considered that the contract
occurred and which law will apply to the contract.
Enforcement for international transactions
The issue of enforcement for the settlement of a dispute is a very important thing to
note in a dispute that has an international aspect. There is a possibility that a decision of a
court in one country cannot be enforced in another country. This is due to the problem of
sovereignty of a country where a foreign court decision in principle cannot be executed if
the execution is outside the jurisdiction of the country. The problems mentioned above can
be anticipated by choosing arbitration as the choice of dispute resolution forum for an
international contract. The choice of arbitration as a dispute resolution forum will bring
legal certainty to the parties in the event of a dispute. Because this arbitration award can be
enforced in another country, so that it will bring peace to the parties. Against an arbitrator's
award that is outside the jurisdiction of a country / foreign arbitration, enforcement can be
carried out in accordance with the provisions of this article.
Conclusions
Based on what has been stated, we can conclude that:
Activities in e-commerce in general can still be categorized as ordinary acts of trade
/ commerce, although there are significant things that distinguish them such as
electronic media that replace paper-based transactions. It can be said that some of
the existing legal regulations can be sufficient, either by analogical interpretation of
existing actions in e-commerce (for rules that do not yet exist) or by making an
incentive interpretation by applying legal regulations to things that are essentially
the same (for example: electricity and electronic data).
