Limitations of Fraud and Default

By Heksa Archie Putra Nugraha

10 Feb 2024 07:00 WIB 10 February 2024 07:00 WIB 14 minutes reading time: 14 minutes 70 read

Updated: 12 Feb 2024 03:21 WIB 12 February 2024 03:21 WIB

This article discusses the differentiating points between the criminal act of fraud and default, accompanied by examples of verdicts.

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Table of Contents

Validity of a Contract
Agreement of the parties
The parties are legally competent
The existence of a specific matter
A permissible causa
General Overview of Default
Criminal Act of Fraud and Default
The party signing the contract relies on the substantial fact that was deceived.
Fraud also includes nondisclosure.
Fraud also includes partial truth.
Fraud by action.
Conclusion

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Gabung Membership

Legal Literacy - Often, many questions arise regarding whether it is possible to report someone who does not fulfill their obligations? To answer this, we need to understand the distinction between Fraud and Default. Let's examine the discussion.

Validity of a Contract

In social relationships that are interdependent, cooperation is often carried out and outlined in a contract. This is done to provide certainty and limitations for the parties in performing.[1]

Contracts, or agreements, are regulated in Article 1313 Burgerlijke Wetbook (hereinafter referred to as “BW”) which indicates the characteristics of a unilateral agreement, while the types of agreements contained in Book III of the BW are reciprocal agreements. Therefore, various modern contract definitions arise. Salim H S[2] argues that a contract is a set of legal rules that govern legal relationships between two or more parties based on mutual agreement to create legal consequences.

The creation of a contract certainly relies on Article 1338 paragraph (1) of the BW, which contains the principle of freedom of contract.[3] In addition, the contract must also meet the legal requirements of a contract as regulated in Article 1320 of the BW, including:

Agreement of the parties

Agreement is the coherence of the expression of will of the parties in a contract.[4] The indicator for assessing this coherence is the statement given because it is almost impossible to assess the will of the parties when the agreement is made.[5]

According to J H Niewenhuis[6], agreement in a contract is formed on two elements, namely the existence of an offer (aanbod, offer) and acceptance (aanvarding, acceptance). In addition, an agreement can be conveyed through several media, such as oral, written, signs, symbols, and tacitly.[7]

To determine when an agreement occurs, giving rise to an obligatory agreement, several theories are known, including:[8]

Utterance theory (uitilingstheorie)
Delivery theory (verzendtheorie)
Knowledge theory (vernemingstheorie)
Acceptance theory (ontvangstheorie)

Still related to the element of agreement, when a will expressed in an agreement turns out to be flawed, it can be canceled. Defect of will is a defect in the formation of the agreement[9] so that there is actually no meeting of minds between the parties (consensus ad idem). Article 1321 of the Civil Code recognizes three forms of defects of will with the following descriptions:

Coercion (dwang)

Coercion is an unfair act or a threat that affects the freedom of will of the parties. The threat is aimed at granting rights, authorities, or privileges.