by Dharma Na GaraSafety tips to buy or rent property in Bali/Indonesia:
- Do a due diligent or deep investigation regarding the property you’re about to buy or rent;
- Recognize the seller, whether if the seller is truly the owner of the land or had rights on the land;
- See the surrounding, like the social life (the society), security, sanitation, land structure, location, how wide the land is, the boundaries and etc.;
- Property like land consist of several rights, there’re primary rights like right to own the land, right to use and etc., besides that there’re temporary rights of the land, they’re lease rights to agricultural land, production sharing rights and others;
- Read carefully if there’s an agreement;
- Consult with us before you rent, buy or sell your property.
by Dharma Na Garathe 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:
- Other people’s subjective rights.
- The perpetrator’s legal obligations.
- Rules of morality.
- 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:
- Violating the subjective rights of others;
- Contrary to the perpetrator’s legal obligations;
- Contrary to the norms of decency;
- 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]
For more details, please consult your problems with us.
Source:
- Wirjono Prodjodikoro, 2000, Perbuatan Melanggar Hukum Dipandang Dari Sudut Hukum Perdata, CV. Mandar Maju, Bandung.
- Rosa Agustina, 2003, Perbuatan Melawan Hukum, Cetakan I, Program Parcasarjana Fakultas Hukum Universitas Indonesia, Jakarta.
- 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.
[4] Wirjono Prodjodikoro, 2000, Perbuatan Melanggar Hukum Dipandang Dari Sudut Hukum Perdata, CV. Mandar Maju, Bandung, p. 8.
by Dharma Na GaraWhat to do to prevent to become a victim of a fraud in Bali-Indonesia?
What to do to prevent to become a victim of a fraud in Bali-Indonesia?
- Prevention is the most efficient way to secure your assets/capitals by having a lawyer to give you advice on the first place before you involve in fake investment or become a victim of a fraud;
- Make a good agreement;
- Read carefully on the written agreement and realized the risks before you sign it, you got a plenty of time to think.
For more information, please consult with us.
by Dharma Na GaraAccident or Personal Injury
What to do when you got a car/motor cycle accident or personal injury in Bali-Indonesia?
- Collect evidences as much as possible such as photos of the witnesses on the scene and ask to take photos of their id card, and take photos and/or videos of the car/motor cycle which involve in the accident, the street/place, the people who involve in the accident and your injury if you have;
- Go to the nearby public hospital which has forensic specialist doctors, for instance in around Denpasar city there’s Sanglah General Hospital to get a medical record of your wounds which we call it “visum et repertum” as a strong evidence in the court also for treatment of your wounds;
- Contact us to give you advice what to do next.
by Dharma Na GaraTips if you’re involving with the law
What to do when you get involve with the law?
- You have the rights not to do anything;
- You have the rights not to speak anything to anyone;
- You have the rights not to sign anything;
- You have the rights not to touch anything;
- Keep eyes on your belongings;
- You have the rights to contact and to choose whoever the lawyer(s) as you like;
- You’re consider innocent until the Panel of Judges decide you’re guilty by open trial for public and the decision has been binding;
- You have the rights to have a translator;
- Choose lawyer (s) who had experienced, licenced from PERADI (Indonesian Advocate Association) and knowledge regarding the problem, also who can speak English fluently;
- Contact us immediately 24/7 for more information.
