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Hardijan Rusli, Hardijan
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Is sebab Under The Civil Law The Same As Consideration Under The Common Law? Rusli, Hardijan
LAW REVIEW Vol 1, No 1 (2001)
Publisher : Pelita Harapan University

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Abstract

A contract without " sebab " (cause) or made with a false or illegal cause is not binding or a void contract (article 1320 and 1335 ofKUHPer). Sebab (Indonesian) means a cause and it is a constituent of a valid contract. Under common law system, one of the elements required to be present in a valid contract is consideration. There are three bases for finding a promise to be enforceable (Schaber, et al. Contracts, p 75) i.e.: 1. Because the promise was made for valid consideration;. 2. Because the promisee has detrimentally relied upon the promise (^detrimental reliance) (see Todd v Nicol; 1957  SASR 72); 3. Because the promise comes within a statute which makes it enforceable despite the absence of consideration. The promise comes within a statute means that the statute agrees to be enforceable without consideration but only with consideration substitute staled or mentioned on the statute. Reliance upon a promise is a distinct basis for creation of contract rights and duties. It is not dependent upon finding any agreement nor any bargained exchange consideration. Legal historians have found reliance upon a  promise to be a historical basis for an action of assumpsit. Restatement Second, section 90 (I) provides that a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The detrimental reliance is actually a quasi contract, whose legal relationship is based on unwritten or common law (quantum meruit), not based on a binding contract. Quantum Meruit is an equitable doctrine, based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby; under those circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even absent a specific contract therefor ( Swiftships, Inc v Burdin, La.App., 338 So.2d 1193, 1195). Consideration is the primary basis for contract enforcement under the common law system. It is a basic necessary element for the existence of a valid contract that is legally binding on the parties. Is the consideration under common law system the same as sebab under civil law system ? To be able to answer this question, first there is a must to know what is consideration and what is sebab ? 
Tinjauan Yuridis Perjanjian Sewa Guna Usaha Dengan Hak Opsi (Financial Lease) Dalam Perspektif Hukum Positif Indonesia Sulivan, Robby; Widjaja, Gunawan; Rusli, Hardijan
LAW REVIEW Vol 3, No 3 (2004)
Publisher : Pelita Harapan University

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 Nowadays, business world competition becomes fiercer. With such a competition, high efficiency is needed to face it. In conducting its activities, a company will meet various problems, such as capital goods fulfilment. In acquiring the capital goods, huge amount of money is required certainly. To solve the problem, financial lease transaction applied.  Financial lease is company financing activity in terms of capital goods supply in order to be used by the company for a certain period, based on periodical payments, accompanied by option right (optie) for the company to purchase related capital goods or to extend the leasing period based on agreed left over value. Leasing as a kind of financing activities has been recognized in Indonesia since 1974, marked by Multiple Agreement Letter  about Leasing Business Permission among Indonesian Minister of Finance, Minister of Industry, and Minister of Trade; Number: Kep-122/MK/IV/2/1974, Number: 32/M/SK/2/I974, and Number: 30/Kpb/I/74. Based on a study on analysis unit in this writing, the author will describe financial lease agreement law position within Indonesian positive law perspective. Also in this writing, rights and obligations of all involved parties  in financial lease agreement will be discussed.
Analisis Hukum dengan Ekonomi Rusli, Hardijan
LAW REVIEW Vol 5, No 2 (2005)
Publisher : Pelita Harapan University

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Abstract

Is the task of law aimed at increase of economic efficiency? The answer to this depends on the political tendency of the reader. For reader who are for market and economic liberal will certainly answer yes, while others who do not agree with this idea, especially those who are "leftists" (disagree with market and economic liberalization), will positively oppose such opinion by saying that the main task of law is to create justice, support right and redistribution. It has to be acknowledged that the answer given by the supporter  of economic idea of law is deemed weak and vague compared to that given by the leftists. Indeed, the proponents of the idea that law is supposed to achieve economic development realize that the main purpose of law is to serve justice and support right, although in some respects advocate the idea that law should also aim at economic liberalization. Many say that the origin of the legal approach to economy emerged in the  USA in 1960s with the writings of Ronald Coase, Gido Catabresi and Richard Possnei: Like any other theories the School of Chicago traces hack its origin of inspiration from the combination of previous approaches.
Analisis Kedudukan Badan Hukum dari Firma Rusli, Hardijan
LAW REVIEW Vol 1, No 1 (2001)
Publisher : Pelita Harapan University

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Firma or vennootschap onder Firma is a partnership form which is frequently used by investors. Firma is governed by the commercial code and the provisions of the Maatschap contained in the civil code. Maatschap is a contract law not a partnership form law so it is dellned as a contract whereby two or more persons agree to contribute something together, to carry on a business together, in order to share in the profits accruing from the effort. Maatschap is a contract law that governs those who carry on business together usually deemed as a partnership form. Firma is not defined as a contract but as a partnership form used for traders and businessmen. Maatschaap is not a legal entity nor a legal partnership form. In the Maatschap, partners are not bound to each other because Maatschaap is not a legal partnership form nor a legal entity. A partner of Maatschap will bind other partners if only they have given power of attorney or their business has got the benefits of the transaction. In the Firma, each partner has the right to act in the name of the Firma within the scope of its activities and it binds the  Firma (entity) but each partner, in the Firma, is responsible for each and every liability of the Firma toward third parsons. Even though each partner can bind the Firma (entity), many lawyers still deem that the Firma is not a legal entity because each partner as legal subject of natural person has responsibility of each and every the Firmas liability. It seems that the Firma is not a legal entity but only as legal subject of natural person  because each partner has the responsibility to pay off the Firmas liability. The matter that scholars are still arguing until nowadays is whether Firma is a legal subject (entity) ? 
Tinjauan Yuridis Rapat Umum Pemegang Saham Dalam Perseroan Terbatas (PT Tertutup) ., Diana; Widjaja, Gunawan; Rusli, Hardijan
LAW REVIEW Vol 3, No 3 (2004)
Publisher : Pelita Harapan University

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 There are many types of company in Indonesia. Limited Company is the most favourable type for owners because their responsibility is limited still they have the privilege to replace or shift their shares. Basically, Limited Company is a cooperation agreement made by the founders. Generally, the bargaining position of each founder is not always  the same. This leads to the arising of 2 different groups, i.e. the majority shareholders and the minority shareholders. Commonly, the majority shareholders is the owner who has more than 50% of the shares in a limited company. Hence, the majority shareholder  holds the strongest position in decision making in general meeting of shareholders  and have the advantage to decide any decision whether would be a positive and negative to the company and minority shareholders. In thus circumstance, to protect minority rights and interest, the limitation and restriction to the majority owners rights and needed.  UUPT gives protection to the minority shareholders in General Meeting of Shareholders through the minimum quorum limitation. Even so, in the real situation, such regulation is not adequate to protect minoritys right. This script would view some of the General Meeting of Shareholders regulation and implementation in Indonesia; and also to comment and give advice to settle some of these matters.
Uniform Domain Name Dispute Resolution Policy: What Is It? Rusli, Hardijan
LAW REVIEW Vol 2, No 3 (2003)
Publisher : Pelita Harapan University

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Abstract

Internet domain names raise some unique trademark issue. One of the important issue is  the interface between domain names and trademarks. A mark comprised of an internet  domain name that does not function as an identifier of the source of goods or service  cannot be regarded as a trademark or service mark. Domain names principally are not the same thing as marks and are used for many purposes other than the identification of a producer or seller of goods or services. Domain names function is mainly as connection  facilitation between computers through the Internet but now it seems that there is another function of domain names, because of their easy-to-remember and human friendly form, domain names have become to constitute business or personal identifiers (First WIPO Internet Domain Name Process: Archive, http://wipo2.wipo.int/processl/, 3/17/03). Businesses have come to realize the significant potential of an internet web site as a means for providing information and offering goods or services directly to the consumer public. The domain name, because of its purpose of being easy to remember dan to identify, often carries an additional significance which is connected with the name or mark of a business or its product or sevices. Domain names as business or enterprise  identifiers have come into conflict with trademarks. The potential for conflict inherent  in the two different systems of registration has been exploited by persons who have made it a practice to register the trademarks of other persons or enterprises as domain names for themselves ("cybersquatting") like Mustika Ratu case in Indonesia. The Mustika Ratu dispute was trialedat District Court of Central Jakarta. Edmon akarimfrom Legal Research Center in Technology Law of Law Faculty, University of Indonesia andAgung Damarsasongko.from Directorate General ofHAKI (Intelectual Property Right) as expert witnesses in the case gave explanations that to register a trademark as a domain name is not a trademark infringe, because domain name is used for information and trademark is used for industry benefit.  (http://www,juducial-news.com/News,assp?Pindex=505), A significant number of disputes apparently never rise to the level of being reported. A large proportion may remain unresolved, or may be resolved informally pursuant to a settlement between the parties. Intellectual property right owners have made it clear throughout the WIPO Process that they are incurring significant expenditures to protect and enforce their rights in relation to domain names. Existing mechanisms for resolving conflicts between trademark owners and domain name holders, before 3 January 2000, were often viewed as expensive, cumbersome and ineffective. Recommendations of the International Ad Hoc Committee (IAHC), organized at initiative of the Internet Societys (ISOC) and the Internet Assigned Numbers Authority (1ANA), took note of the tension that existed between domain names and intellectual property rights and included specific procedures designed to resolve conflicts between the two. Uniform Domain Name Dispute Resolution Policy (UDRP) which has been adopted, on 26 August 1999, by the Internet Corporation for Assigned Names and Numbers (ICANN) is incorporated by reference into the Registration Agreement and sets forth the terms and conditions in conection with a dispute between the domain name holder and any party other than the registrar over registration and use of an internet domain name registered. The Uniform Domain Name Dispute Resolution Policy (UDRP) began ramp up implementation on 1 December 1999 and became fully operational on 3 January 2000. ICANN is a new organization formed to manage the policy and technical aspects of the Internet Domain Name System.  Although the policy provides that most domain-name disputes will be resolved by the  courts, it also calls for administrative dispute-resolution proceedings to enable streamlined, economical resolution of disputes arising from alleged "abusive registration."  This writing explains how the Mandatory Administrative Procedure Concerning Abusive  Registrations of UDRP works because lawyers in Indonesia should know it. 
Tinjauan Yuridis Terhadap Kreditor Konkuren Dalam Hal Tercapainya Perdamaian Dalam PKPU Wijaya, Nini Putri; Widjaja, Gunawan; Rusli, Hardijan
LAW REVIEW Vol 3, No 3 (2004)
Publisher : Pelita Harapan University

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Now a days, where the economy has not fully recovered from crisis yet, business and entrepreneurs must be extra careful in carrying out their business. Many have been forced to shut down their business due to their incapability in paying out debts that are already due. If a businessman/ debtor has more than one creditor and one of the debts are already, then by request of the creditor, the debtor can be filed bankrupt. This is regulated by Indonesian Bankruptcy Law article I (1). As a reaction to this, the law has provided the debtor an alternative way put, that is by Suspension of Payment.  Suspension of Payment is a request made by the debtor to the court to give a period of time to suspend the payment of the debt which is due because of certain reasons. This is regulated by article 212 Indonesia Bankruptcy law. In the Suspension of Payment , many parties beside the debtor is involved, among other are the creditors, which consist of three kinds of creditor who are: unsecure creditor, creditor with security, and creditor with special right. By having this Suspension of Payment, the creditor with security  who has the right to execute their security, must be suspended for a period of time until the verdict of the court is resulted. The rights of that creditor is only suspended, not dismissed until the judged gives out a verdict of either bankruptcy or reconcilement means. After the verdict is resulted, that creditor can execute their rights, which can  unbenefit the debtor and the unsecured creditor. Because of the Indonesian Bankruptcy law has not yet given enough protection, that is why the Indonesian government still discussed the new Indonesian Bankruptcy Law, hopefully can give enough protection to all parties. However, this study typologically falls into the category of normative legal  research. Therefore, this research is qualitative in nature and mainly uses literary method in gathering the data required. Further, those data were processed with other stipulating and related laws and regulation.
Perbandingan Arbitrase Hubungan Industrial Dengan Pengadilan Hubungan Industrial Rusli, Hardijan
LAW REVIEW Vol 4, No 3 (2005)
Publisher : Pelita Harapan University

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Conflicting interests, disagreement on rights, dispute over work termination of working  contract and/or dispute between workers union within one corporation may easily and  frequently arise in labour or industrial relation due to lack ofcovergence of opinions in  the drowning up of, and/or changes of the working conditions or company regulation or  in the collective labour agreement. One of the dispute resolution over interests and workers unions recognized by law is the so- called Extra-judicial Settlement Procedure, beside that of within the court system namely Industrial Relation Court. This extra-judicial settlement procedure, which may be termed as Industrial Relation Arbitration, is a written agreement between parties in dispute recognizing and invoking a settlement procedure upon which those parties agreed that the judgment made by this arbiter is binding and final. The parties also agree that such final judgment may not be submitted to the Industrial Relation Court for further examination. This writing is dealing with the comparison of those two settlement procedures convening to resolve the worker and/or labour related legal problems in pursuant to the Law No. 2 of 2004 on the Industrial Relation Court.
Kewenangan Pengadilan Negeri Jakarta Pusat Dalam Kaitannya Dengan Pembatalan Putusan Arbitrase Internasional Ditinjau Dari Kasus Antara Karaha Bodas Company, Pertamina dan PLN ., Hendra; Widjaja, Gunawan; Rusli, Hardijan
LAW REVIEW Vol 3, No 3 (2004)
Publisher : Pelita Harapan University

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Abstract

Freedom of contract gives flexibility to litigants in determining choice of law, choice of jurisdiction, and choice of domicile. In the unlimited business era nowadays, arbitration is a very popular forum for businessmen in many countries in settling civil disputes outside the courts, because of the simple procedure and relatively fast result compared to the court procedure. Besider the arbitration award is not for public exposure, which is very important for the businessmen who their credibility. On the other hand, businessmen who have won the case are when it comes to the enforcement of the arbitration award which have to involve the court. The most common thing that happened is that mostly the losing party will ask for a annulment or refusal of the arbitration award in the country where the award will beexecuted. In Indonesia, according to the article 70, 71, and 72 Undang-Undang No. 30/1999 concerning arbitration and alternative dispute resolutions, the authority to annul an arbitration award is in the hand of the district court. In article 70 Undang-Undang No. 30/1999 it is mentioned that the parties can file an application to annul an arbitration award if any of the following conditions are alleged to exist : 1. Letters or documents submitted at the hearings are acknowledged to be false or forged or are declared to be forgeries after the award has been rendered; 2. After the award has been rendered there are documents found which are decisive in nature and which deliberately concealed by the opposing party; or 3. The award was rendered as result of fraud committed by one of the parties to the dispute. In the Case between Karaha Bodas Company, PERTAMINA, and PLN, the District Court of Central Jakarta has an authority to annul the Geneva arbitration award according to is only valid the conditions in article 70 Undang-Undang No. 30/J999, but the annulment award can only be used in  the Indonesian law territory, it is not an obligation for other courts in other countries to the follow the annulment award, due to State Sovereignty of every country. An annulment of Geneva arbitration award, in order to admitted and enforced by each country, must be done by the court in Geneva, Swiss in which the arbitration award has been given, or according to the law by which the award has been given. This is according to article V (])e New York Convention 1958. 
Mengenali Masalah-masalah Hukum E-commerce Rusli, Hardijan
LAW REVIEW Vol 1, No 2 (2001)
Publisher : Pelita Harapan University

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Companies have ventured onto the Information Superhighway in increasing numbers to  "reduce distribution and marketing costs eliminate the middleman increase efficiency,  promote impulse transactions and streamline distribution to far-flung locales" as well as to  "connect directly with consumers at home streamline operations and internal transactions,  and increase business -to- business sales. The value of US based-commerce transactions was estimated to be $ 43 billion in 1998, and projected to grow to $ 1.3 trillion by 2003, over nine percent of total US business sales. More importantly, electronic commerce ("e-commerce ") stands on the threshold of broad global acceptance. According to projections bv one research firm, worldwide e-commerce sales will reach as high as $ 3.2 trillion in 2003, reprensenting nearly five percent of all global sales. Likewise, governments around the world have enthusiastically embraced e-commerce as a positive development that should be encouraged. For example, numerous governments have announced that fostering e-commerce is a major public policy objective. Indeed,  governments themselves have benefited from the e-commerce revolution by launching their own Web sites to better communicate with and serve constituents while reducing transaction costs. State upon state, and country upon country, have noted this movement online and responded by proposing, and in many cases enacting, e-commerce legislation and regulations on a wide variety of topics: taxation of e-commerce transactions, jurisdiction over online transactions, data protection and data privacy, confidentiality of e-commerce transaction (including export controls of encryption products), unsolicited commercial e-mail (spam), information security, and the enforceability of e-commerce transactions. (Thomas J. Smedinghoff, and Ruth Hill Bro.; Moving With Change: Electronic Signature, Legislation As A Vehicle For Advancing E-Commerce).How is Indonesia? Is Indonesia ready to have ONLINE LAW? Like Robert F Kennedy said that "unless we moved with change we would become its victims ".Indonesia has to have e-commerce transaction act because it is a positive development so there is no reason for not setting up the essential law. This article is about introducing what legal issues in e-commerce transactions. 
Co-Authors Diana ., Diana Gunawan Widjaja Hendra . Nini Putri Wijaya, Nini Putri Robby Sulivan, Robby