Article 1266 Of The Civil Code
Chanelle Kirksey
Article 1266 of the Indonesian Civil Code stipulates that the event of default does not automatically terminate the contract, but termination of a contract shall be requested to the Judge. However, in practice, the parties usually set aside Article 1266 of the Indonesian Civil Code so one party entitles to terminate the contract unilaterally. The main issues discussed in this article are the opinion of legal experts about the waiver of Article 1266 of the Indonesian Civil Code and the implementation of the waiver clause of Article 1266 of the Indonesian Civil Code based on court decisions. This research is normative juridical research where secondary data is collected through library research. This article explains that there are different opinions from legal experts regarding whether or not the parties can waive Article 1266 of the Indonesian Civil Code, judging from the nature of the legal rule, the cases, and the parties of the contract. Based on the court decisions that have been analyzed, most of the judges accepted the implementation of such waiver clause using Article 1338 paragraph (1) of the Indonesian Civil Code as the legal basis. Judges who do not accept the implementation of such waiver clause considered it a violation of Article 1266 of the Indonesian Civil Code itself.
Pasal 1266 Kitab Undang-Undang Hukum Perdata menentukan bahwa wanprestasinya salah satu pihak tidak otomatis mengakhiri perjanjian, melainkan pengakhiran perjanjian harus dimintakan kepada hakim. Namun, pada praktiknya para pihak lazim mengesampingkan Pasal 1266 KUH Perdata sehingga dalam hal terjadi wanprestasi perjanjian bisa diakhiri secara sepihak. Pokok permasalahan dalam artikel ini adalah mengenai pandangan ahli hukum terhadap pengesampingan Pasal 1266 KUH Perdata dan implementasi klausul pengesampingan 1266 KUH Perdata berdasarkan putusan-putusan pengadilan. Penelitian ini merupakan penelitian yuridis normatif dengan menggunakan data sekunder yang dikumpulkan melalui studi kepustakaan. Artikel ini menjelaskan bahwa terdapat perbedaan pandangan di kalangan ahli hukum mengenai dapat atau tidaknya para pihak mengesampingkan Pasal 1266 KUH Perdata yang dilihat dari sifat kaidah hukumnya, kasus demi kasus, dan para pihak yang membuat perjanjian. Berdasarkan putusan-putusan pengadilan yang Penulis analisis, sebagian besar hakim menerima implementasi klausul pengesampingan Pasal 1266 KUH Perdata dengan menggunakan dasar hukum Pasal 1338 ayat (1) KUH Perdata. Sehingga kesepakatan para pihak mengenai pengesampingan Pasal 1266 KUH Perdata di dalam perjanjian harus ditaati oleh para pihak yang bersangkutan. Hakim yang menolak implementasi klausul pengesampingan Pasal 1266 KUH Perdata berpendapat bahwa pengesampingan Pasal 1266 KUH Perdata melanggar ketentuan Pasal 1266 KUH Perdata itu sendiri.
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Ask young (or even senior) Indonesian lawyers what the waiver means, and most will give you this generic response: the provision waives the requirement to obtain court approval to terminate the relevant contract. The response is not wrong; Articles 1266 and 1267 do in essence require termination of reciprocal contracts due to default to be decided by a court.[1]
It can be concluded almost absolutely then, that contracts cannot waive the article criminalizing embezzlement, as it qualifies as an imperative law. The debate gets a bit murky though, when dealing with articles in the ICC, or those statutory provisions that concerns private or civil law. Legal scholars (and jurisprudences) could agree that the civil law (including the ICC) is made up of a mixture of imperative and facultative laws[5] but have not definitively agree which is which.
At least, provisions of the ICC that govern fundamental principles are considered to be imperative laws. This include, Article 1320 of the ICC that states the elements of a contract (which by the way, are consent, capacity, certain object, and lawful purposes) and Article 1338 of the ICC codifying the pacta sunt servanda and freedom of contract principles. But differences of view seem to occur when dealing with a more detailed and operative provision in the ICC, like its Articles 1266 and 1267.
In light of diverse and unclear views related to which statutory provisions of the private law that could be waived or not by a contract, what would be the appropriate course of action? The writer argues that it would still be fine to put in waivers (including, to put in waiver to Articles 1266 of 1267 of the ICC) of private law-related statutory provisions in a contract, but always couple them with a severability clause (a clause stating that the invalidity of one clause does not cause invalidate the whole agreement). If during the performance of a contract, no issue was to arise among the contracting parties, then debates as to the validity of the waivers would not occur in the first place. If in the unwanted event where dispute do arise and the validity of the waivers be challenged, any determination of invalidity of such waiver would not affect/invalidate the whole agreement.
The party against whom the obligation is not fulfilled may opt to compel the counterparty to fulfill the agreement where such fulfillment is still possible, or demand the termination of such agreement, with compensation of costs, damages and interests.
An Agreement is the act of one or more person who bind themsolves to another parties which creates a legal relationship between the two parties and gives birth to rights and obligations. Business people in the world always use agreements to get strong legal certainty. Actually in making agreements there are various forms of clauses that are poured into the agreement, one of which is to include clauses overriding article 1266 KUHPerdata in the clause canclelation terms. As we konow article 1266 KUHPerdata arrange that void condition must always be made in agreement and closing of the agreement has to asked to the judge because the positions of the parties is same on an agreement. In the agency agreement PT. Sriwijaya Air and PT. Denisa Mitra Wisata has a clauses distorted 1266 KUHPerdata on rule void agreement and then the agreement was canceled unilaterally without request for cancellation to the judge.
The research for master about: 1) What is the reason for the parties in the agency agreement PT. Sriwijaya Air and PT Denisa Mitra Wisata distorted the rule 1266 KUHPerdata? 2) How the implementation mechanism clauses void conditionon agency agreement PT. Sriwijaya Air with PT. Denisa Mitra Wisata.
The research method use is empirical juridical nemly legal research that studies and analyzes the legal behaviour of individuals or comunities in relation to law. Data source used are primary and secondary.
The result of the study indicates that the application of the clause outlining article 1266 KUHPerdata in the term of canceling the agency agreement can be applied. Because referring to the validity of an agreement is an agreement between the two parties not only in making the agreement but changing and canceling also include this rule has in 1320 KUHPerdata.
And the legal certainly of the agreement can be accounted for with azas pactasunsepanda on clause 1338 KUHPerdata. The basis for overriding article 1266KUHPerdata is that KUHPerdata is a civil code that is used as a reference for making agreements in the legal system in Indonesia, especially civil law. Therefore, the articles in the KUHPerdata are included in the agreement clauses if they wish to be set aside.
2. The proper purposes are principally: to order divine worship, to care for the decent support of the clergy and other ministers, and to exercise works of the sacred apostolate and of charity, especially toward the needy.
Can. 1255 The universal Church and the Apostolic See, the particular churches, as well as any other juridic person, public or private, are subjects capable of acquiring, retaining, administering, and alienating temporal goods according to the norm of law.
Can. 1257 1. All temporal goods which belong to the universal Church, the Apostolic See, or other public juridic persons in the Church are ecclesiastical goods and are governed by the following canons and their own statutes.
Can. 1258 In the following canons, the term Church signifies not only the universal Church or the Apostolic See but also any public juridic person in the Church unless it is otherwise apparent from the context or the nature of the matter.
Can. 1263 After the diocesan bishop has heard the finance council and the presbyteral council, he has the right to impose a moderate tax for the needs of the diocese upon public juridic persons subject to his governance; this tax is to be proportionate to their income. He is permitted only to impose an extraordinary and moderate exaction upon other physical and juridic persons in case of grave necessity and under the same conditions, without prejudice to particular laws and customs which attribute greater rights to him.
Can. 1266 In all churches and oratories which are, in fact, habitually open to the Christian faithful, including those which belong to religious institutes, the local ordinary can order the taking up of a special collection for specific parochial, diocesan, national, or universal projects; this collection must be diligently sent afterwards to the diocesan curia.
Can. 1267 1. Unless the contrary is established, offerings given to superiors or administrators of any ecclesiastical juridic person, even a private one, are presumed given to the juridic person itself.
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