This article discusses standard agreements and standard clauses. A standard agreement is a written document standardized by one party and used en masse without considering the different conditions of the parties. The party making the standard agreement has stronger bargaining power than the party being offered. Standard agreements usually contain standard clauses, which are offers "take it or leave it" from business actors to prospective consumers. Consumers can reject or accept the standard agreement. This article also discusses the laws and regulations governing standard agreements, as well as problems and solutions in their use in Indonesia.

Understanding Standard Agreements and Standard Clauses

A standard agreement is a written agreement in the form of a document whose contents, form, and method of closing have been standardized unilaterally by one party, then duplicated, and used en masse without considering the differences conditions possessed by the parties. The maker of the standard agreement is the party whose bargaining power is stronger than the party to whom he offers the standard agreement. The parties who are potentially offered the standard agreement are generally called “consumers.”

Standard agreements generally contain standard clauses as referred to in Article 1 paragraph (1) of Law Number 8 of 1999 concerning Consumer Protection (UUPK), which in essence implies that standard agreements are indeed an offer that is “take it or leave it” from business actors to prospective consumers.

The positions of the parties in a standard agreement are not balanced because business actors are the economically strong party while consumers are on the economically weak side. Business actors make the rules contained in the standard agreement, where these rules are sometimes one-sided.

In its latest developments, standard agreements containing standard clauses can take the form of: written on paper (paper based), and written digitally (digital based/paperless) in the form of a document that has been created digitally unilaterally by one party, and is ready to be used by another party who will make an agreement in the network.

In essence, in a standard agreement, consumers can refuse or accept and sign or not sign. This means that if the consumer signs the agreement, he is indirectly bound to the business actor and the rights and obligations between the business actors and the consumer arise.

A standard agreement in digital form is a standard agreement made through electronic means used in Electronic System Trading (PMSE). The characteristics of a digital standard agreement are as follows: Paperless (paperless), without face-to-face (faceless), without physical money (paper and metal money), using digital signatures (digital signatures), beyond national borders (borderless), and covering many jurisdictions. As a result of standard agreements being unilaterally determined by business actors, potential consumer losses that make standard agreements can be mitigated into standard clauses containing exoneration clauses, violations of the principle of immediacy, and abuse of circumstances.

At this time there are a number of laws and regulations that directly or indirectly regulate standard agreements, namely as follows:

  • Civil Code Civil Law (KUHPer)
  • Law No. 8 of 1999 concerning Consumer Protection (UUPK)
  • PP No. 80 of 2019 concerning Trading Through Electronic Systems (PP PMSE)
  • Regulation Financial Services Authority No. 1/POJK.07/2013 concerning Consumer Protection in the Financial Services Sector and Bank Indonesia Regulation No. 16/1/PBI/2014 concerning Consumer Protection for Payment System Services

Problems and Solutions in the Use of Standard Agreements

Currently the use of standard agreements in Indonesia has expanded starting from simple standard agreements, such as purchase orders or notes that include the standard clause 'goods that have been purchased cannot be exchanged or returned' to very complex health insurance standard agreements that use terms or phrases that are not easily understood by the insured as consumers. The most frequent case is the increase in costs that must be borne by bank customers. Consumers cannot do anything because in the agreement that has been made, for example for home loans, there is a clause that states that consumers must pay 'increases in costs that occur in the future'.

The burden of proving the element of error is transferred from the consumer as the plaintiff to the business actor as the defendant. In this case, the business actor must prove that he is not guilty, as regulated in Article 28 of the UUPK. This is contrary to Article 1865 of the Civil Code where the plaintiff (consumer) who alleges the defendant's (business actor) error has the burden of proving the defendant's error.

In the event that a service consumer sues a service provider based on unlawful acts, the UUPK, which does not distinguish between goods and services due to haste at the time of preparation, the lawsuit is also based on strict liability. The confusion and absence of explicit regulation regarding standard agreements in the service sector clearly creates weaknesses in the regulation of standard agreements in the service sector in the UUPK.

There is a standard clause prohibited under Article 18 paragraph (1) of the Consumer Protection Act because it contains an exoneration clause and a standard clause that is not included in the prohibition of Article 18 paragraph (1) of the Consumer Protection Act but is a standard clause that contains an exoneration clause. The use of standard clauses is found in many business fields, both goods and/or services, including telephone/internet services; bank credit; insurance; transportation services; parking services; financing; expedition/logistics; housing; accommodation; health services; and so on.

Problems in digital/electronic agreements in Indonesia consist of 4 (four) related to the validity of electronic contracts in the form of agreements and electronic signatures, settlement of electronic contract disputes in the form of mechanisms and evidence, challenges to consumer protection of electronic contracts, and anticipation of preventing electronic contract fraud. Considering the estimated number of uses of digital standard agreements in the future, the amendment to the Consumer Protection Act must include regulations regarding digital standard agreements containing digital standard clauses.

Currently, there are laws and regulations related to Electronic Systems and Transactions and various matters regarding digital standard agreements, such as the validity requirements and electronic signatures, namely: Law No. 19 of 2016 concerning Amendments to Law No. 11 of 2008 concerning Electronic Information and Transactions (ITE Law) and Government Regulation No. 71 of 2019 concerning the Implementation of Electronic Systems and Transactions (PP PSTE).

With these problems, changes are needed in several regulations related to the use of standard agreements, one of which is the Consumer Protection Act. Until now, the enforcement of the Consumer Protection Act still faces various obstacles caused by many factors. One of the factors referred to is the errors, shortcomings, and weaknesses of the regulations in the Consumer Protection Act itself, namely in the aspects of:

  1. Law Grammar;
  2. Law Systematics;
  3. Business Actor Responsibility;
  4. Consumer Dispute Resolution;
  5. Institutional.

According to the Consumer Protection Act, consumer disputes can be resolved through two channels, namely: through the district court, or often referred to as the litigation process, and through the Consumer Dispute Resolution Agency (BPSK), or often referred to as the non-litigation process. However, with the development of all aspects of human life towards online processes, as a future solution, the consumer dispute resolution process (including the settlement of standard agreement disputes) must be carried out online. This is called online dispute resolution (ODR).

Closing

Standard agreements, both non-digital and digital, have the potential to harm consumers because they are prepared, made, and used unilaterally by business actors. This makes it easy for business actors to include standard clauses containing exoneration clauses. The practice of using standard agreements has the potential to be misused by business actors, because the Consumer Protection Act is still open to multiple interpretations, the supervisory system is not structured, and consumers do not yet understand the legal consequences of a standard agreement.

The government needs to make changes to the Consumer Protection Act by clarifying the criteria for standard agreements containing standard clauses that contain exoneration clauses. In an effort to protect consumer rights using standard agreements, the government must carry out intensive and massive socialization for business actors regarding prohibited standard clauses. Consumers who feel their rights have been violated must submit complaints to business actors until they are able to demand their rights, both through litigation and non-litigation.

References

  • Gunawan, Johannes, Bernadette M. Waluyo, Budiono Kusumohamidjojo, David Tobing, Megawati Simanjuntak, and J. Widijantoro. Perjanjian Baku Masalah dan Solusi. Jakarta: Consumer Protection in ASEAN (Protect), 2021.
  • Malohing, Yanti. “Kedudukan Perjanjian Baku Kaitannya dengan Asas Kebebasan Berkontrak.” Lex Privatum V, no. 4 (2017): 8.
  • Renathan, Aldo. “Tinjauan Yuridis terhadap Klausula Baku sebagai Suatu Perjanjian Dilihat dari Sisi Kitab Undang-Undang Hukum Perdata dan UUPK.” Universitas Indonesia, 2009, 90.
  • Satory, Agus. “Standard Agreements and Consumer Protection in Financial Services Sector Business Transactions: Application and its Implementation in Indonesia.” PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) 2, no. 2 (2015): 269–90. https://doi.org/10.22304/pjih.v2n2.a4.