Extraction of Adat Law Values as National Law

Forming Principle in Contract Law:

Study on 3 Districts in North Sumatera

Saidin

and Edy Ikhsan

Privat Law Department, Faculty of Law Universitas Sumatera Utara

Keywords: Contract Law Principle, Engagement Law, Customary Law, Legal Policy, Partial Codification.

Abstract: The current national engagement law is a law originating from Dutch colonial heritage. The message implied

in the 1945 Constitution of the Republic of Indonesia, through its transitional rules, is that the existing colonial

law is still in force as long as there is no new one. Enforcement of Colonial-made Engagement Laws with

different ideological backgrounds, has lasted for more than one and a half centuries in this country. The

method used in this research is doctrinal (normative) and non-doctrinal (sociological) methods. The findings

in this study are: In Langkat District There are values and principles of tolerance in the legal relationship of

the engagement where profits and losses are borne jointly by parties who conduct business relationships; In

Deli Serdang District, especially in the fishing community there is a reciprocal legal relationship between ship

owners and fishermen workers who do not fully refer to the agreement that they agreed upon initially but

adjusted to the final conditions faced by each party by using the principle of balance; In Coal District found

voluntary principles for each additional work that was not agreed upon.

1 INTRODUCTION

The national obligation law that applies in Indonesia

today, is the law of obligation which refers to the

Indonesian Civil Code that iswritten in thethird book

of Civil Code. The implementation was based on the

principle of concordance, which equated the

application of the law in the Netherlands with the

colonies which were then called the Dutch East Indies

So far there is indeed a government effort to make

the National Obligation Law itself in the style of

Indonesian law. This effort has been initiated since

1978. Although unlike the Dutch Civil Code in its

complete codified form, the government's attempt to

replace the colonial legacy law uses a partial

approach as its legal political choice.

The government's efforts to make a partial

codification of civil law, including in the field of

national obligation law, have begun. Collaboration

between the National Law Development Agency and

the Indonesian Faculty of Law has been conducted

(Mariam Darus Badrulzaman, 2006) After

Indonesia's independence in the ideals of legal

development - and that is a necessity - has laid the

foundation for the development of national law is

Pancasila which is Grundnorm . Pancasila as the

ideological and philosophical foundation of the

nation must be used as a foundation and aspiration

which is at the same time a source of all the sources

of orderly national law.These principles of law can

later be reduced as concrete legal norms (OK. Saidin,

1, 2016)

Finding and make the values that live in the

community to be placed as the principle of the

formation of national law in the legal field of contract,

an important reason, why this research needs to be

done.Selection of the three research sites namely; in

Langkat District, Deli Serdang and Batubara are costs

to the cultural and ethnic situation, namely the Malays

who in their daily lives have carried out business

transactions as an economically more developed area,

compared to other provinces in Sumatra, but still use

customary and customary normsa in everyday life. In

addition, the composition of society is culturally very

open in the sense of accepting other ethnicities and

cultures to be symbiotic.

2 RESEARCH METHODOLOGY

With the choice of doctrimal reasearch methodology

and non-doctrinal reasearch, it is hoped that this

1802

Saidin, . and Ikhsan, E.

Extraction of Adat Law Values as National Law Forming Principle in Contract Law: Study on 3 Districts in North Sumatera.

DOI: 10.5220/0010101318021808

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1802-1808

ISBN: 978-989-758-449-7

research will find various principles of national

engagement law abstracted from proverbs, pantun,

poetry and various forms of agreements that take

place in the community in the research area. In turn,

these legal principles can be used as a basis for the

formation of the Indonesian national engagement law.

3 RESULT AND DISCUSSION

3.1 Choice of Legal Policy : Pancasila

Ideology

After Indonesia gained its independence, Indonesia

should have drafted the law of the country with a law

derived from the ideology of its own people. The

Pancasila which is a Groundnorm hides many

principles of law, including the principle of the law of

obligation.

The principle of law always follows the

underlying ideology. If the legal norms of agreement

come from the Netherlands, of course the legal norms

are derived from values that originate in the ideology

that grew out of Western civilization, European

civilization.(Mahadi, 1986)

For example, agreement law which refers to the

principle of freedom of contract, has moved towards

capitalists. Many agreements in the field of civil law

(business and economics), no longer refer to the

values of freedom derived from customary law and

habits that grew in the Indonesian civilization.

Communal principles and alignments to people's

economy no longer underlie the making of an

agreement. Ranging from credit agreements, lease

purchases, franchising, licenses to agreements that

fulfill consumer rights. The shift of Pancasila values

crystallized from the original paradigmatic values of

Indonesian culture and society is increasingly

exploding that not only happens in the urban

community with all big business but also has

penetrated into the village community with a small

business scale (OK. Saidin, 2, 2016)

This situation is certainly not beneficial for the

future development of Indonesian civilization.

Indonesia's future is very much determined by the

choices of the current generation, including the

choices in the legal field.

The richness of Indonesian civilization that

originates from cultural values with cultural

background, plural ethnicity if it is not immediately

removed will sink and be buried and will eventually

disappear in the days. Like the sinking of the value of

"Representative Consultative Democracy" in the

system of election of the Head of State and Regional

Head which has been going on since the "reform"

government order. There is no more questioning

about our politics, with the principle of consensus.

The values of the fourth principle of Pancasila in our

democracy are moving towards liberal democracy.

Likewise, the people's economic system desired by

the 5th Sila Pancasila has moved towards capitalist

economy, as evidenced by the many laws and

regulations that apply in this country related to the

economic field that refers to the American legal

system. For example, Law on Limited Liability

Companies, Capital Markets, Consumer Protection,

Legislation on Intellectual Property Rights such as:

Plant Varieties, Integrated Electronics Layout

Designs, and others others are largely compiled with

reference to the capitalist legal system.

All of the Laws mentioned above are based on the

legislation produced by the legislature in this country

which largely ignores the ideological and

philosophical values of Pancasila. Therefore, there

needs to be an effort to raise and explore the values

hidden behind Indonesian culture and civilization.

These values are important today to be inventoried,

collected and searched and explored to find the

principles of national law. The principles that are

hidden in the culture and civilization of the

Indonesian nation that have been explored, searched

for, adopted and then through the process of

abstraction with the method of induction of specific

things into things that are general are drawn to the

summit to find the principles of law which later used

as a concrete legal norm to replace the national legal

norms from the Dutch Colonial (Mariam Darus

Badrulzaman, 2006).

3.2 Position of Contract Law in the

Civil Law System

Civil law is a system (Mariam Darus Badrulzaman,

2006). In the legal system (civil) there are several

components or sub-systems, whether in the form of

legal principles, legal norms or legal notions

(Sudikno Mertokusumo, 2009:102).

Soedewi argue that, Civil Law is the law that

regulates the interests between individual citizens and

other individual citizens (Sri Soedewi Masjchoen

Sofwan, 1981:1). This formulation is not final

nonetheless. Because there are still many other

formulations put forward by experts in the field of

legal science. But for a reference, the limit above can

be taken, which is actually a translation from Privaat

Recht (Utrech and Mohd Saleh Djindang, 1983:50).

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Based on the above formula, it can also be

ascertained that the scope of civil law is very broad.

There is a written civil law and there is an unwritten

civil law. The arrangement is spread in various legal

systems in various forms. There are codified and non-

codified (some are arranged in detail and

systematically and some are spread in various

sporadic regulations). In the field of customary law

there is also the field of civil law, as well as in the

field of Islamic law there is also the same thing.

However, the scope regulated in the field of civil law

in various legal systems remains the same, which

includes the arrangement of:

1. Personal body law / legal entity

(Rechtspersoon).

2. Family law (familie Recht).

3. Property law (vermogen Recht).

4. Inheritance law (erfrecht).

Such a systematic arrangement is known as the

division of civil law according to science (Sri

Soedewi Masjchoen Sofwan, 1981:2). However, the

Civil Code in its drafting does not follow such

systematic. Even what deviates greatly from the

conception of the division of civil law according to

science in the system of the Civil Code, is the

inclusion of regulations on the Law of Evidence and

Expenditure (Verjaring) contained in Book IV of the

Civil Code, which is actually included in the formal

legal field.

The Civil Code in its systematic arrangement

regulates the following fields:

1. Book I about People (Van Personen)

2. Book II about Objects (Van Zaken)

3. Book III about Perikan (Van

Verbintennisen)

4. Book IV concerning Proof and

Expiration (Bewijs en Verjaring)

If in this description what is intended is the law of

engagement, the limit is the legal engagement which

is contained in the book III of the Civil Code (Van

Verbintennissen) . Thus the engagement law intended

is the engagement law which is part of the fields of

law regulated in the Civil Code.

3.3 Principles of Contract Law

Contained in the Civil Code

In Civil Code Book III Contract Law (Mariam Darus

Badrulzaman, 2006:108), put forward a number of

principles contained in the treaty law namely:

1. The principle of freedom to enter into an

agreement (autonomy section)

2. Principle of consensualism (conformity of will)

3. Principles of trust

4. The principle of binding strength

5. The principle of legal equality

6. Principle of balance

7. The principle of legal certainty

8. Moral principle

9. Principle of propriety

10. Principle of habit

Furthermore Mariam Darus Badrulzaman

elaborate the principles mentioned above. We

have derived the following description from his

writings.

1. The Principle of Freedom of Contract

The principle of freedom of contract is a very

essential principle of law in the treaty law. By quoting

the French term Mariam Darus Badrulzaman stated

that this principle is also called the principle of

"consularism" autonomy, which determines the

“existence" (raison d'etre, het

bestaanwaarde) agreement.

Consensualism principle contained in Article

1320 of the Civil Code contains the meaning of

"willingness" (will) the parties to mutually

participate, there is a willingness to be bound to each

other.

This will evokes trust (vertrouwen) that the

agreement is fulfilled.This principle of trust is an

ethical value derived from morals. Respected humans

will keep their promises, Eggens said.

Grotius, looking for the basis of that consensus in

the Law of Nature. He said, that "pacta sunt servanda"

(the promise is binding). Then he stated again,

"promissorum implendorum obligatio (we must

fulfill our promise).

This philosophy is also illustrated in a Malay

pantun which says "Buffalo is held by its rope, man

is held by its promise". This is an example of social

norms.

This principle of consensualism has a close

relationship with the principle of freedom of

contract (contractvrijheid) and the principle of

binding force contained in Article 1338 al. 1 of the

Civil Code. This provision reads "All Agreements

made legally apply as laws for those who make

them. This is an example of legal norms.

"All" means to include all agreements, both those

whose names are known and those not known by the

Law. The principle of freedom of contract

(contractvrijheid) relates to the contents of the

agreement, namely the freedom to determine "what"

and with "who" the agreement is held. The agreement

made in accordance with Article 1320 of the Civil

Code has binding powers.

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In its development the principle of freedom of

contract is increasingly narrow in terms of several

aspects, namely:

- In terms of public interest

- In terms of standard agreements

- In terms of agreements with the government.

2. Principles of Consensualism

This principle can be found in Article 1320 and

Article 1338 of the Civil Code. In Article 1320 of the

Civil Code the denominator is firm whereas in Article

1338 the Civil Code is found in the term "all". The

words all indicate that everyone is given the

opportunity to express their will (will), which feels

good to create an agreement.

This principle is closely related to the principle of

freedom to enter into an agreement.

3. Principle of Trust (Vertrouwensbeginsel)

Someone who enters into an agreement with another

party, fosters trust between the two parties that each

other will hold his promise, in other words will fulfill

his achievements behind the day. Without that belief,

the agreement will not be held by the parties.

With this belief, both parties bind themselves and

for both agreements have binding powers as laws.

4. Binding Strength Principle

Thus it can be concluded that in the agreement there

is a principle of binding strength. The binding of the

parties to the agreement is not only limited to what is

promised, but also to some other elements as long as

the habits and propriety and morals are desired. Thus,

the principles of morality, decency and habits are

binding on the parties.

5. Principle of Legal Equation

This principle places the parties in equality, there is

no difference, even though there are differences in

skin, nation, wealth, power, position and others.

Each party must see this equality and require both

parties to respect each other as human beings created

by God.

6. Balance Principle

This principle requires both parties to fulfill and

implement this agreement. This principle of balance

is a continuation of the principle of

equality. Creditors have the power to demand

achievement and if needed can demand repayment of

achievements through the debtor's wealth, but

creditors also bear the burden of implementing the

agreement in good faith.It can be seen here that the

position of a strong creditor is balanced with its

obligation to show good faith, so that the position of

the creditor and debtor is balanced.

7. Principles of Legal Certainty

The agreement as a legal figure must contain legal

certainty. This certainty is revealed from the binding

power of this agreement, namely as a law for the

parties.

8. Moral Principles

This principle is seen in a fair engagement, where a

voluntary act from someone does not give him the

right to sue for the counterparty of the debtor. Also

this is seen in zaakwaarneming , where someone who

commits an act voluntarily (morally) has an

obligation (law) to continue and complete his actions

as well as this principle is contained in Article 1339

of the Civil Code. Factors that give motivation to the

person concerned carry out the legal act based on

"morality", as a call from their conscience.

9. Principles of Compliance

This principle is stated in Article 1339 of the Civil

Code. The principle of propriety here relates to the

provisions regarding the contents of the agreement. In

my opinion this principle of propriety must be

maintained, because through this principle the

measure of relations is also determined by a sense of

justice in society.

3.4 Opportunities for the Entry of Adat

Law and Customary Law Values

Article 1339 jo. 1347 of the Civil Code, opens a great

opportunity to receive the values of customary law

and customary law and even normatively in the legal

field of crime. Article 1339 reads, "An agreement is

not only binding on what is expressly regulated, but

also things that are in a state and habit that are

commonly followed."

Something that demands the nature of the

agreement, is required by propriety and habits will be

found in the daily lives of the Indonesian people,

which is accepted as custom and custom.

Article 1347 of the Civil Code also states that

according to the principle of the contract (bestaandig

gebruikelijk beding) is considered to be secretly

included in the agreement even though it is not

expressly stated.

Both provisions leads us to the conclusion that the

elements of the agreement are:

1. The agreement itself

2. Compliance

3. Habits

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4. Constitution.

Element (1), (2) and (3) will be found in the

community, in people's daily lives, while the

element (4) refers to the formation of a national legal

system countries are.

The contents of the agreement are interpreted as

expressly stated by both parties regarding their rights

and obligations in the agreement. The form may be

written, it can also be in oral form.

Adherence in the provisions of the Dutch

civil law refers to the condition of European society,

of course propriety according to Indonesian society is

different from propriety according to European

society.

Likewise, what is meant by the law by this

provision is complementary law because the law

which is compelling cannot be deviated by the

parties. So if we had been as long as references

concerning the treaty law Book III B the Civil Code.

There is an interesting view conveyed by Mariam

Darus, that propriety can change the contents of the

agreement. This means that the agreement that has

been agreed upon and even set forth in an authentic

deed can change, if the content is contrary to

propriety.

The problem in the application of the above

provisions, is about the relationship of each element

of the agreement, what is meant by habits and how is

the relationship between habits and laws.

In judicial practice it turns out that the sequences

as determined by Article 1339 of the Civil Code are

subject to changes, in which the court concludes from

what is regulated by Article 15 AB (Algemene

Bepalingen Van Wetgeving). This article determines

that the habit is only recognized as a source of law, if

appointed by law.

This is where the importance of the habits that take

place in the community must be raised, used as a

source of values to be then normatively expressed in

the form of laws.

On that basis the judiciary places the law on habit,

so that in reality the order of the elements then

becomes:

1. Contents of the Agreement

2. Constitution

3. Habits

4. Propriety

What does it mean by habits?

The habits referred to by Article. 1339 the Civil

Code is a general practice (gewoonte) and habits

regulated by Article. 1347 Civil Code is a local

(special) habit or habit that is commonly applicable in

certain groups (bestending gebruikelijk beding).

In judicial practice, we see differences about the

relationship between local customs and the law.

Decree of HR 26 June W.8729 concerning

disputes over payment of rent indicates that the

general practice cannot deviate from the law. The law

stipulates that debt is a debt (in form of money) that

is delivered (brengschuld) does not have to be picked

up. Payment must take place and be carried out at the

residence of the creditor, according to Article 1393 of

the Civil Code. However, it is the habit of leasing

payments taken by the homeowner to the tenant. A

tenant adheres to the habit and does not want to

deliver rental payments to the homeowner. Likewise,

the homeowner adheres to the law and waits for the

rental payment to be delivered by the tenant to him. In

front of the court, it was decided that the provisions

of the law would be maintained.

HR April 1932 decision (NJ 1932, 1613) states

the following:

A sold cow to B which will be submitted

later. Then the cow is sick. By using Article. 1460

Civil Code, the buyer must accept the sick sick and

must pay the price.

The custom that applies in place, regarding animal

trafficking is that cattle that are sold and have not

been handed over are borne by the seller, the buyer

does not have to accept and pay for it. The buyer

demands that habit. In its decision, the court was of

the opinion that the prevailing habit (according to the

contents of Article 1347 of the Civil Code), although

not stated expressly, was considered to be secretly

included in the agreement, and because it was part of

the agreement. And in the event that agreements that

are expressly made can deviate from the law, even

this habit can override the law. So in this case the risk

is borne by the seller.

The conclusion is: the habits mentioned in

Article. 1347 of the Civil Code is higher than the law

but the habit is in Article. 1339 is lower than the law.

Many legal writers argue that the habits intended

by Article 1339 and Article are actually. 1347 the

Civil Code is the same because it talks about the same

subject. The second is written in the law to ensure that

in carrying out the agreement the habit factor must be

maintained.

3.5 Empirical Findings

In the Langkat Community it was found that, in the

beginning the agreement to lease land for the

management of ponds was developed. Rent is paid in

advance, some are paid after harvest. Farmers or fish

farmers finance for all production processes until the

shrimp can be harvested. But on the way, not all

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farmers or fishpond entrepreneurs succeeded. Often,

the rent that is partially paid at the end when the

harvest is finished can no longer be paid by farmers

or businessmen. They then look for a "peaceful" way

to fulfill their achievements. For example, by giving

farmers or entrepreneurs the opportunity to manage

the pond the following year, with the calculation of

profit sharing. This form of profit sharing agreement,

is then known as " aging" . Both parties give

achievements. The landowner provides the land, the

farmer or the farm manager, providing seeds, feed

and the entire process in the management of the pond,

the result is two parts for the farm manager, one for

the land owner.

We can draw the conclusion that, the agreement

that has been agreed upon can be amended on the

wishes of both parties that are adjusted to the

circumstances. The landowner does not necessarily

implement the contents of the initial agreement,

which places the land tenant as the default party,

namely not paying rent according to the contents of

the agreement. However, another alternative is

sought by giving farmers or entrepreneurs

the opportunity to be given the opportunity to try to

avoid farmers or fish farmers from losses.

In this event there is a hidden principle, namely

the principle of tolerance, the principle of

tolerance. During this time the principles of tolerance

and tolerance were used in the preparation of laws

related to religious harmony. This tolerance principle

is rarely used in business relationships. That k arena

during the business relationship is built with the

concept of capitalism. Business is not interpreted as a

legal relationship to share profits and take each other's

losses. Proverb in the Malay realm: "The same weight

is carried, light is carried along, the same hill

climbing to the slope is the same

as decreasing" should be made an important principle

in business law and used as the basis for the formation

of the National Engagement Law.

In Deli Serdang, fishing communities and the

vessel owners fishing gear, employing the fishermen

with sharing-system, but there are times when one of

fishing days do not get any results. The cost of fishing

and consumption of the crew and their families is

often borne first by the ship owner and fishing

gear. This situation occurred a bus for weeks. Oral

Agreement can no longer be fulfilled

normally. Normative rules often cannot be

enforced. Here the role of habits is far more binding

than the normative rules they have agreed on. Is

already a habit, if the result of fishing "nil" is to be

borne by the owner of the vessel and fishing gear, the

same as fishermen who have sacrificed their time and

energy, but the results are nil. The principle of

"tolerance" is a very strong principle for the people in

Deli Serdang.

This principle is formed in the relation of legal

engagement, similar to the principle of "negotiation".

A person who buys a job for making a house. The

agreement is not detailed in detail about the forms of

work that must be done. However, for the needs and

technical feasibility of the house there is an additional

work to be done, if there will not be a house that is

not technically feasible. Then the work is done

voluntarily by the recipient of the job. While

additional work wages are no longer questioned, they

become "hearted hearts". Events of such agreements

were found in Batubara, voluntary work, known as

"SERAYO". A kind of additional work that is not

economically calculated additional wages.

4 CONCLUSIONS

Based on the explanation above, it can be concluded

that the three Regencies in North Sumatra insofar as

the engagement law is related, the following

principles are:

1. In Langkat District There are values and

principles of tolerance in the legal relationship

of the engagement where profits and losses are

borne jointly by parties who conduct business

relationships.

2. In Deli Serdang District, especially in the fishing

community there is a reciprocal legal

relationship between shipowners and fishermen

workers who do not fully refer to the agreement

that they agreed upon initially but adjusted to the

final conditions faced by each party by using the

principle of balance.

3. In Coal District found voluntary principles for

each additional work that was not agreed upon .

The suggestions that the writer can put forward are

as follows:

1. The policy of legal development in Indonesia,

including the development of national law must

refer to the ideology of Pancasila and the legal

values that live in the midst of Indonesian

society, because it is necessary to continue

efforts to explore and seek the principles of law

that live in the middle. Middle of Indonesian

society and used as the basis for the formation

of national law.

2. The existence of customary law can be found in

various forms of concrete legal relations and it

is the duty of the researcher to draw on the

legal principles contained therein, therefore it

Extraction of Adat Law Values as National Law Forming Principle in Contract Law: Study on 3 Districts in North Sumatera

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is necessary to develop a normative research

model for the withdrawal of legal principles

which have so far received less attention.

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