The principle of a tie properties Agreement / Contract

The principle of a tie properties Agreement / Contract
The situation in the event of changes
according to

In the course of time to the principle of freedom of contract is deemed necessary to place a restriction on the limits of freedom; therefore human beings as well as an individual, he is a social being and existence of the law is not only to protect individual interests but also the interests of the community.
In this article the author will review about the binding nature of an agreement for the implementation of the agreement in the event of a change of circumstances. A change in circumstances that caused the debtor is in difficulty to meet the required achievement he made in the agreement, and it is not a state of force (coercion / force majeure).
To better facilitate further discussion, the authors first give some idea the difference between the state of Force (Force majeure) and the situation changes.
In Force Condition changing circumstances that make compliance impossible or obstruction of achievement; whereas the situation changes, changes in the state raises an objection to fulfill the agreement, because if it is fulfilled, then one of the parties will suffer losses.
And if analyzed further then the Force Condition fulfillment by the debtor practical achievement raises objections, otherwise the situation changes, the fulfillment of the debtor's achievement is very heavy implemented.
From this analysis it can be concluded that the dam circumstances force the emphasis lies on the debtor that the debtor unobstructed position to meet achievement; Interchangeability while in a state of EAM located at the position of creditors if the creditors in good faith and decency can demand the fulfillment of the debtor's achievements.
Since centuries billowy parties to the agreement would not be harmed by the occurrence of a condition that occurs after the agreement made​​, so that the parties take refuge in the promise of autumn secretly called Rebus sic stantibus clause.
This clause states that the agreement is considered valid as long as the circumstances remain unchanged and if circumstances change then the agreement becomes void.
So in this clause does not differentiate whether the non-fulfillment of achievement income attributable to force majeure or a change in circumstances; so that at the time the debtor so experienced a change in circumstances can take refuge in the promise of autumn; This means that the agreement becomes null and void by a change in circumstances.

It was pioneered by Levebach with his theory "synallagma economies" which means to be a balance between the two sides in terms of the economy, so the accomplishments and achievements of reciprocal counter is equal in value and in case of tension that is objectively harmful or beneficial either party, this is a risk that must be endured. Thus in case of any change in circumstances it is necessary to note the distribution of risk between the parties to a loss.

Further development of the commercial world in the 21st century bring changes to the rules regarding the nature of the tie an agreement for the implementation of the agreement in the event of changes in the state has dealt with separately outside the provisions of the Force Condition (Force Majeure), as seen in the Principles of International Commercial Contracts UNIDROIT.

Implementation of Article 6.2.1 UNIDROIT contract stipulated that if the execution of the contract becomes harder for one party (Becomes more onerous for one of the parties), the parties nevertheless bound to implement perikatannya (that party is nevertheless bound to perform its obligations) subject the provisions of the trouble.
The provisions of this article is to respect the provisions of article 1.3 of the general principle of the binding nature of a contract (A contract entered into validity is binding upon the parties ...), but the nature of the provisions in the UNIDROIT bind a contract is not absolute, ie if there is a fundamental change on the balance of the contract, the circumstances are exceptional circumstances and the principles set forth in Hardship Clause (Clause Difficulty).
Definition Difficulties (Hardship) are events that have fundamentally changed the balance of the contract. This is caused by the increased cost of execution of the contract is very high or execution of the contract value for the recipient is decreased, meanwhile:
a. it happened or known by the injured party after closing konrak;

b. events can not be estimated properly by the injured party at the time of conclusion of the contract;

c. events occur beyond the control of the injured party;

d. the risk of the event was not predicted by the injured party.

conclusions:
As per the changing times, the formal contents of the agreement often have to opt for the sake of propriety and decency.
Changes in circumstances can not be a reason to cancel the agreement, unless there is a change that is fundamental and therefore have entered into the realm of Force Condition (Force Majeure).
suggestion:
The notary public must begin to think about the differences in the implementation of a state change agreement; it's time to pour the clause Difficulty (Hardship Clause) in addition to Force Majeure clause in every deed of contract law that made ​​the act (ie an agreement whose implementation has a certain period / term of the agreement, for example: Cooperation Agreement,
Chartering Agreement, Development Agreement, Lease Agreement, Agreement / Contract Supply, etc.).
Examples of such simple cases need to be distinguished by the price change due to exchange rate fluctuations between the Indonesian Rupiah to foreign currency, in this case not including clauses Force Condition (Force Majeure), but is still in its early stages Hardship Clause, so that the debtor may still be liable to perform its obligations. Things like this can be affirmed in the deed concerning the benchmarks / criteria when fluctuations can
categorized as a state of difficulty or when a state of Force, for example, by determining the parties shall adjust the price if the exchange rate fluctuations has reached more than 50% of the original exchange rate since the signing of the deed, the obligations of each party to bear some of the same magnitude of the foreign exchange, .... etc etc.
It's time to pay attention to the element of decency and propriety in an authentic deed is notarized; Parties are therefore mengkonstatir Notary as the party will of the parties to the deed are appropriately providing input and consideration of the parties regarding the implementation of the agreement in the event of a change of circumstances as described above.