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All Journal Acta Comitas Asy-Syariah
Nury Khoiril Jamil
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Religion Humanities Law, Crime, Criminology & Criminal Justice

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Kepastian Hukum Memorandum Of Understanding (Mou) Pada Kondisi Pandemi Covid-19 Dalam Hukum Perjanjian Indonesia Nury Khoiril Jamil; Achmad Hasan Basri; Urmawan Sutopo
Acta Comitas Vol 7 No 02 (2022)
Publisher : Universitas Udayana

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24843/AC.2022.v07.i02.p2

Abstract

The objective of this paper is to examine the legal certainty of the Memorandum of Understanding during Covid-19 pandemic in the treaty law which applies in Indonesia. In addition, it is also to find out the resolution of disputes when one of the parties breaks a promise. The study used normative juridical methods with law enforcement approaches, law concept analysis and case aprroach. The results of this study are the position of the MoU during the pandemic requires an observation of the substance contained in the MoU. If a MoU contains an element of material financial loss, if the performance is not fulfilled, it is punishable. If the parties disprove it, the MoU has already been established as a contract agreement based on Articles 1338 and 1320 of the Civil Code. In the other word means while it is not explicitly stated as a contract, but based on the de facto theory (implied in fact) the MoU would be categorized as a contract. While the MoU only regulates the basic provisions that emphasize the moral burden than the current pandemic situation. So, depart from it, when the law is not explicitly set about the MoU, at that time a judge must explore and identify the law. It can be found by investigating legal values ??that arise in society by adjusting to current circumstances, especially the pandemic situation through interpretation to build legal constructions that can fill legal voids which may later become jurisprudence.
Keabsahan Perjanjian Akibat Negative Confirmation Konsumen E-Commerce Perspektif Asas Al-Ridha Nury Khoiril Jamil; Nisa Masitho; Agustine Rossa Diah Utari
Asy-Syari’ah : Jurnal Hukum Islam Vol. 10 No. 1 (2024): Asy-Syari'ah: Jurnal Hukum Islam, Januari 2024
Publisher : LP3M Universitas Islam Zainul Hasan Genggong

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55210/assyariah.v10i1.1471

Abstract

Transactions carried out via digital platforms have become unavoidable with the various features that are available and make it easier. However, on the one hand, if we look at the law of engagement, the majority of e-commerce platform providers apply standard contracts in carrying out transactions. Even though e-commerce provides effective facilities for complaints, returns and in-store inspections, it does not have a big impact on consumers, especially for transactions with small amounts. It is interesting to examine whether a negative assessment (negative confirmation) of the receipt of goods can still be said to be an agreement or the reason for the invalidation of the agreement from the perspective of the principle of al-ridha which is a fundamental principle in Islamic contract law. The method in this research uses normative juridical, this research approach uses legislation and conceptual. The results and recommendations of this research show that the principle of pacta sunt servanda in Indonesia is implemented strictly and cannot be intervened by anyone as long as it fulfills legal requirements and does not violate statutory regulations so that it meets legal certainty, but on the side of justice, especially in the perspective of the principle of al-ridha, It is necessary to take a substantive approach in assessing contracts, the validity and legal certainty of contracts is indeed necessary, but what is more important is the proportional value of justice.
Co-Authors Achmad Hasan Basri Agustine Rossa Diah Utari Nisa Masitho Urmawan Sutopo