PENERAPAN ASAS KEBEBASAN BERKONTRAK SEBAGAI UPAYA PENCEGAHAN TERJADINYA PERJANJIAN YANG TIDAK MEMENUHI KEADILAN SOSIAL

Abstract

In the Civil Code as well as in other laws and regulations, there is no single party that clearly states the application of the principle of freedom of contract. Concerning the existence of the principle of freedom of contract, it can be concluded from several articles of the Civil Code, namely Article 1329 of the Civil Code which stipulates that "every person is capable of making agreements, unless he is determined not to be competent by the law of deviation from the application of the principle of freedom of contract in the standard contract of business activities, business agreements that occur not because of a balanced negotiation process between the parties, but the agreement occurs in a way that one party has prepared standard conditions (standard clauses) on an agreement form that has been printed and presented to the other party for approval with almost does not give any freedom at all to the other party to negotiate the conditions offered.The weak party (usually in this case the consumer) is only allowed to read the conditions put forward by the party whose position is strong, and if he agrees to these requirements then the consumer is welcome to sign it (take it), but vice versa if the consumer does not approve the conditions proposed by the actor business, then the transaction cannot be continued (leave it). That is why this standard agreement is then known as the mention of "take it or leave it, a weak contract, usually not in a truly free state to determine what is desired in the agreement. In such cases the party in a stronger position usually uses the opportunity to determine certain clauses in the standard contract, so that the contents of the agreement only accommodate the interests of those whose position is stronger in relation to restrictions on the principle of freedom of contract. Asikin Kusuma Atmadja, in his paper stated that the Judge was authorized to enter / examine the contents of a contract if needed because the contents and implementation of a contract were contrary to the values in society. Thus the principle of freedom of contract contained in Article 1338 of the Civil Code is no longer absolute, which means that in certain circumstances the judge is authorized through legal interpretation to examine and assess and state that the position of the parties in an agreement is in an unbalanced state.