The Application of Circumstance Abuse Doctrine Misbruik Van Omstandigheden on Judicial Practice in Indonesia

Agus Hernoko () and Ghansam Anand ()
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Agus Hernoko: Faculty of Law Airlangga University Surabaya Indonesia, Postal: ID
Ghansam Anand: Faculty of Law Airlangga University Surabaya Indonesia, Postal: ID

Journal of Advanced Research in Law and Economics, 2017, vol. 8, issue 7, 2128-2133

Abstract: This study analyzed the abuse of circumstances as a factor that delimits the freedom of making a contract associated with the onset of the contract not because of the casue which is not allowed The abuse of circumstance is not only related to the content of a contract but rather related to what had happened at the time of the inception of the contract as one of the parties feels constrained to determine their will in a contract It concerns on the circumstances that contribute to onset of the contract i e taking benefit from other s circumstance does not cause the content or intent of a contract be not permissible rather it may cause the missused will be restricted The abuse of circumstances may happen due to one s superiority over another party The superiority is not only economic in nature but also psychological or both Misusing such superiority may cause circumstance abuse It is due to inequality of bargaining power that the weak cannot avoid from while the stronger party abuses the circumstance by imposing the contents of the contract that leads to the inequal advantages for both parties In Indonesia the abuse of circumstances is often used as a cause to abrogate a contract due to the defect of will although it is not yet regulated in legislation but rather derived from a legal construction recognized by the jurisprudence of the Supreme Court It is definitely differenct from Netherlands that has regulated its misbruik van omstandigheden in article 3 44 lid 1 Nieuw Burgerlijk Wetboek

Date: 2017
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