The Difference Between Default and Unlawful Act in Indonesia

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By:

Team of Hukumindo

Previously, the Hukumindo.com platform has talk about "Translated Personal Pleidoi of Nurdin Abdullah (Former Governor of South Sulawesi)", "How to Avoid Fraud in Investment by Using Legal Tools", read also "I Have a Contract Whose Goods Have Not Been Delivered, How Do I Sue Under Indonesian Law?" and on this occasion we will discuss about 'The Difference Between Default and Unlawful Act in Indonesia'.

In the event of a violation of rights that causes harm, a person sometimes experiences confusion regarding what category of violation he experienced between default and unlawful act. In fact, there is a very basic difference between default and unlawful act.[1] On this occasion, the Hukumindo.com platform will discuss the basic differences between default and acts against the law, both examining legal sources and the basic differences in terminology.

Governing Law

Default is regulated in Article 1243 of the Civil Code which reads as follows:[2]

"Reimbursement of costs, losses and interest due to non-fulfillment of an engagement begins to be required if the debtor, even though it has been declared negligent, is negligent in fulfilling the engagement, or if something that must be given or done can only be given or done within the time that has been passed. determined."

A person can be said in default, if that person (the debtor) does not do what he promised or he violates the agreement, and the default of a debtor consists of four types, namely:[3]

1. Not doing what it was promised to do;
2. Carry out what he promised, but not as promised;
3. Did what he promised but was too late;
4. Doing something that according to the agreement cannot be done.

Unlawful Acts are regulated in Article 1365 of the Civil Code which reads as follows:[4]

"Every act that violates the law and causes harm to others, obliges the person who caused the loss because of his fault to replace the loss."

Based on the above definition and Indonesian jurisprudence, unlawful act is an act that meets the following criteria:[5]

1. Contrary to the legal obligations of the perpetrator; or
2. Violating the subjective rights of others; or
3. Violating the rules of etiquette; or
4. Contrary to the principles of propriety, thoroughness and caution that a person should have in association with fellow citizens or against other people's property.

Legal Term

According to Prof. Subekti, Default occurs if one of the parties in the agreement does not carry out the agreement, carries out what was promised but did not do it properly, carried out what was promised but was late, and did something that according to the agreement should not be done. Then according to J. Satrio, argues that Default is a condition where the debtor does not fulfill his promise or does not fulfill it properly and all of them can be blamed on him. There is no Default if there is no prior agreement.[6]

According to Rosa Agustina, in her book "Act Against the Law", in determining that an act can be qualified as against the law, 4 conditions are needed: a. Contrary to the legal obligations of the perpetrator; b. Contrary to the subjective rights of others; c. Against decency; d. Contrary to propriety, thoroughness and prudence.[7] According to the authors, this terminology paraphrases elements of Article 1365 of the Civil Code.

M.A. Moegni Djojodirdjo in his book entitled “Act Against the Law”, argues that default and unlawful act have differences in the burden of proof, calculation of losses, and the form of compensation. In a lawsuit against the law, the plaintiff must prove all the elements of the unlawful act in addition to being able to prove the existence of mistakes made by the debtor. Whereas in a breach of contract, it is sufficient for the plaintiff to show that there is a breach of contract or an agreement that has been violated, it is very important to consider whether someone will file a claim for compensation due to default or because of an unlawful act. [8] 

If you are a creditor who has bad debts or unpaid bills, or you are a victim of an unlawful act from another person that causes harm to you, then contact us, we will prepare a lawsuit for your legal interests, feel free in 24 hours, we will be glad to help you. 

*) For further information please contact us:

Mahmud Kusuma Advocate

Law Office

Jakarta - Indonesia.

E-mail: mahmudkusuma22@gmail.com

_________________

References:

1. "Perbedaan Wanprestasi dan Perbuatan Melawan Hukum", indonesiare.co.id., Diakses pada tanggal 31 Januari 2022, https://indonesiare.co.id/id/article/perbedaan-wanprestasi-dan-perbuatan-melawan-hukum

2. Civil Code

3. Op. Cit., indonesiare.co.id.

4. Ibid, Civil Code.

5. Op. Cit., indonesiare.co.id.

6. "Perbedaan Gugatan Wanprestasi dan Gugatan Perbuatan Melawan Hukum", lawyerjakarta.id., Diakses pada tanggal 31 Januari 2022, https://lawyerjakarta.id/perbedaan-gugatan-wanprestasi-dan-gugatan-perbuatan-melawan-hukum/#:~:text=Gugatan%20Perbuatan%20Melawan%20Hukum%20didasarkan,berlaku%20pada%20para%20pihak%20saja.

7. "Tulisan Hukum – Perbuatan Melawan Hukum dalam Hukum Perdata dan Pidana", bali.bpk.go.id., Diakses pada tanggal 31 Januari 2022, https://bali.bpk.go.id/perbuatan-melawan-hukum-dalam-hukum-perdata-dan-pidana/

8. Op. Cit., indonesiare.co.id.