Rahmannisa Fadhilah

It is familiar to hear the word ‘contract’ or ‘agreement’, before concluding whether these two things are the same or different, we should take a look at the meaning of these words first.

Referring from Article 1233 Indonesian Civil Code, which states:

“All contracts arise from an agreement, or by law.”

The definition of contract according to Subekti in his book entitled Hukum Perjanjian is:

 “A legal relationship between two people or two parties, based on which one party has the right to demand something and the other party is obliged to comply with that claim.”

On the other hand, the definition of agreement according to Subekti’s statement:

“An event when one person promises another or when two people promise each other to do something.”

The connection between agreement and contract can be described as two parties or more who promise each other as well as agree on something that creates a legal binding between the two parties. With the existence of this legal binding causes one party to demand something and the other party is obliged to meet the claims. The party who demands something is called a creditor and the party who is obliged to fulfill their demands is called a debtor. A connection arises from the two parties who agree and promise each other, which is called a contract. According to that context, an agreement between two parties creates a contract between who made it.

The definition of a contract that arises by the force law according to Article 1352 of the Indonesian Civil Code is;

"Contracts arising by force of law, shall arise by statute or by law as a result of people's acts"

Through P.N.H Simanjuntak's book “Pokok-Pokok Hukum Perdata Indonesia”, it is said that the embodiment of the intent of a contract that arises by force of law itself is a contract caused by kinship, regarding rights and obligations between parents and children. Another example related to the rights and obligations can be found between neighbors who own a yard which is regulated in the Article 625 of the Indonesian Civil Code,

“There exist rights and obligations among owners of neighboring plots of land, which arise from natural location of the plots of land or legal regulations.”

Regarding the will of a contract that arises from the parties, in the sense that a contract that is arise from an agreement is a contract that is desired by both parties who made it and they agreed on terms of the agreement, while the parties of a contract that arising by force of law is outside the will of the parties. Because of the agreement, the parties are mutually bound. If two parties have entered into an agreement then they have the intent and effect of a valid agreement which is the both parties should have thought about the legal contract and its implementation.

Through the explanation above, we can conclude that the connection between agreement and contract is by forming an agreement, a contract is created. In the agreement, there are parties who demand something and parties who must fulfill it. A contract can arise from an agreement and by force of law, the agreement is the main source in the emergence of a contract but it does not rule out the possibility that it could arise by force of law.

Sources:

-          Subekti, Hukum Perjanjian, Jakarta: Penerbit Intermasa, 1979.

-          P.N.H Simanjuntak, Pokok-Pokok Hukum Perdata Indonesia, Jakarta: Djambatan, 2009.