by Dharma Na Gara

Hukum Perdata-Civil LawAugust 8, 20200 comments 0 Likes

the Act against the Law/Tort

The act against the law is:

Regulated on Article 1365 BW/Indonesian Civil Code, namely:

An unlawful act, which incurs losses to another person, obliges the person who because of his fault caused the loss, to compensate for the loss.[1]

The definition of Acts against the Law in Indonesia is translated from the Dutch term, namely “Onrechtmatige daad”. According to M.A. Moegni Djojodirdjo, in the term “against” inherent active and passive traits, active nature can be seen when deliberately doing something that causes harm to others, so deliberately making movements so that the active nature of the term “against” is clearly visible. Conversely, if he is deliberately silent or in other words, if he is just passive, causing harm to others, then he has “against” without having to move his body.[2]

In 1919, Hoge Raad began to interpret acts against the law broadly. This broad teaching was marked by Arrest dated 31 January  1919 in the case of Lindenbaum versus Cohen which was spearheaded by the Dutch Supreme Court (Hoge Raad Decision), published in the magazine “Nederlandsche Jurisprudentie” 1919-101, the term “Onrechtmatige daad” is interpreted broadly, so it includes an act that is contrary to decency or with what is deemed appropriate in social life. Hoge Raad argues that an act against the law must be interpreted as doing or not doing something that is contrary to or violates:

1. Other people’s subjective rights.
2. The perpetrator’s legal obligations.
3. Rules of morality.
4. Appropriateness in society.[3]

Lindenbaum versus Cohen

The incident at that time was that there were two printing offices for books, one by a man named Cohen, the other from a man named Lindenbaum. These two printing offices were in great competition with each other. One day an employee from Lindenbaum was persuaded by Cohen with various gifts and abilities, to inform Cohen of the derivatives of the offers made by Lindenbaum to the public and also tell the names of the people who placed orders at the Lindenbaum’s office or people who asking for information on printed prices.

With this action, Cohen certainly intended to use the things he knew, to set a strategy so that the public would prefer to go to his office rather than to Lindenbaum’s.

Then Lindenbaum discovered Cohen’s actions, who felt aggrieved by Cohen, and so he sued Cohen before the court, namely the Arrondissementrechtbank in Amsterdam. Lindenbaum called Cohen’s action an act of violating the law of Article 1401 BW of the Netherlands (the same as Article 1365 BW Indonesia) and asked for compensation.

In the first-tier case hearing Cohen was defeated, but in the Gerechtschof appeal-level (High Court) case hearing in Amsterdam, Lindenbaum was defeated, based on the formerly adhered to jurisprudence, namely that Cohen’s actions were not considered illegal. Because it cannot be identified an article of the law which has been violated by Cohen.

Lindenbaum asked for a cassation examination and in the end Hoge Raad (Supreme Court) had won Lindenbaum, by stating that in the definition of an unlawful act of article 1401 BW the Netherlands, including an act that rapes another person’s legal rights, or is contrary to the legal obligations of the perpetrator, or is against morality (goede zeden) or with a decision in society regarding the interests of others (“indruist tegen de zorgvuldigheid, welke in het maatschappelijk verkeer betaamt ten aanzien van anders person of goed”).[4]

Since Arrest 1919 the judiciary has always interpreted the meaning of “against the law” in a broad definition. Followers of the narrow interpretation are concerned that a broad interpretation can create legal uncertainty. Modern opinions indeed place a heavy burden on the judge by demanding heavier than the old teaching. This applies not only to illegal acts but to all areas of law. Law has increasingly left its formation to judges and modern legislation supports this as well.

Action against the law in a broad mean are:

1. Violating the subjective rights of others;
2. Contrary to the perpetrator’s legal obligations;
3. Contrary to the norms of decency;
4. Contrary to the propriety prevailing in public traffic towards oneself and others.[5]

The decision of the Supreme Court of the Republic of Indonesia which adheres to broad teachings is contained in the Supreme Court Decision Number 3191 K / Pdt. / 1984 between Masudiati versus I Gusti Lanang Rejeg, whom Masudiati as the Plaintiff felt that I Gusti Lanang Rejeg as the Defendant has lied to her. The Defendant promised that within 4 (four) months the Plaintiff would be married according to custom or religion, thus the Plaintiff was willing to be married off (living together but unofficially married) with the Defendant. It turned out that even though the Plaintiff had insisted on getting married, the Defendant did not want to married her until it lasted for 1 year and 4 months. During the living together, the plaintiff was responsible for household expenses. The plaintiff worked as a teacher. Because they had not been legally married, the plaintiff then demanded damages that had been incurred during the living together with the defendant. The Supreme Court decided to grant the plaintiff’s claim and stated that the defendant had committed an unlawful act on the basis that the defendant had violated the norms of decency/morality and appropriateness in society so as to cause harm to the plaintiff. Based on the norms of decency/morality and appropriateness in society which are unwritten law, it can be concluded that the Indonesian Court has adopted a broad interpretation of Acts against the Law.[6]

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Source:

1. Wirjono Prodjodikoro, 2000, Perbuatan Melanggar Hukum Dipandang Dari Sudut Hukum Perdata, CV. Mandar Maju, Bandung.
2. Rosa Agustina, 2003, Perbuatan Melawan Hukum, Cetakan I, Program Parcasarjana Fakultas Hukum Universitas Indonesia, Jakarta.
3. Subekti dan R. Tjitrosudibio, 2007, Kitab Undang-undang Hukum Perdata, Pradnya Paramita, Jakarta.

       [1] R. Subekti dan R. Tjitrosudibio, 2007, Kitab Undang-undang Hukum Perdata, Pradnya Paramita, Jakarta, p. 346.

       [2] Rosa Agustina, 2003, Perbuatan Melawan Hukum, Cetakan I, Program Parcasarjana Fakultas Hukum Universitas Indonesia, Jakarta, p. 36.

       [3] Ibid., p. 37.

       [4] Wirjono Prodjodikoro, 2000, Perbuatan Melanggar Hukum Dipandang Dari Sudut Hukum Perdata, CV. Mandar Maju, Bandung, p. 8.

       [5] Rosa Agustina, Op.Cit., p. 38.

       [6] Rosa Agustina, Ibid., p. 43