Standard Clause and Aspects of Legal Protection Against Consumers
Nabawi, S.H.
• General Corporate • 26 Jul 2021

Entrepreneurs in carrying out their business are often using the economic principal, in which to obtain  maximum possible profit with minimum possible expenditure. This principal then encourages entrepreneurs to take action that harm  consumers regarding to circulated product in public, one of them is by implementing the standard clause in agreement, receipt, invoice/receipt, or other documents in the purchase transaction.


Article 1 paragraph (10) Law Number 8 of 1999 concerning Consumer Protection (“UUPK”) prescribe that standard clause is any regulations or provisions and conditions unilaterally prepared and predetermined by the entrepreneurs in the form of a document and/or an agreement which is binding and must be met by the consumers.


In article 18 paragraph (1) UUPK determined that in offering the goods and/or services for trading, the entrepreneurs are prohibited from including a standard clause on agreement shall containing these following:

  1.          Stated transfer of the entrepreneurs responsibility;
  2.        Stated entrepreneurs reserve the right to refuse to receive back the goods already purchased by the consumer;
  3.       Stated that entrepreneurs reserve the right to refuse, to refund for the goods and/or services already purchased by the consumer;
  4.         Stated to grant authority coming from consumers to  entrepreneurs in order to carry out directly or indirectly all unilateral actions with regards to the goods purchased on installer the consumers;
  5.       Regulated authentication to forfeit the use of the goods or the benefits of the services purchased by the consumers;
  6.       Granted rights to  entrepreneurs to reduce the benefits of the services or reduce the properties of the consumers as the object of services trading;
  7.         Stated that consumers are subject to the new regulation, additional regulation, continued regulation and/or continuous change of regulation made unilaterally by entrepreneurs during the period of the consumers are using the services they purchased;
  8.        Stated that the consumers give authority to the entrepreneurs to impose mortgage, pledge or guarantee against the goods purchased on installment by the consumer.


In addition to the contents of the prohibited standard clauses as above, Article 18 paragraph (2) UUPK also prohibited the inclusion of standard clause at the place or in the form which is difficult to see, cannot be clearly read, or under the statement which is difficult to understand.


From the provisions in UUPK concerning standard clauses that have been described, it can be concluded that in principle the use of standard clauses by the entrepreneurs are not prohibited, it is just only the use of the standard clauses caused the harm of the position contract from consumer, or unbalanced, by including the exception of standard clauses to be allowed as regulated in article 18 paragraph (1) and 18 paragraph (2) UUPK, then the agreement is a prohibited agreement.


In the event that there is a prohibited of a standard clauses, it causes the agreement to be against the law so that it becomes null and void, this is in line with article 18 paragraph (3) whereas determined that each standard clause which made by the entrepreneurs in the document or agreement which falls under the provisions as intended with article 18 paragraph (1) and paragraph (2) UUPK shall be declared null and void, thus the legal consequences for not fulfilling the objective conditions for the validity of an agreement based on article 1320 of the Civil Code, of there is  a prohibited of a standard clauses in the agreement, in practice the cancellation of the agreement is asked to the court so that the court declares the agreement is to be null and void. Besides the implications of null and void of an agreement that contain the prohibited of the standard clauses, UUPK also regulate criminal penalty for the entrepreneurs, in which criminal penalty of 5 (five) years imprisonment or a maximum fine of IDR 2.000.000.000 (two billion Indonesian rupiah) as determined in article 62 UUPK.


 

This article is generally made for the purpose of ANR Law Firm publication only and should not be treated as legal advice for your legal problem. Shall you have any further questions regarding this topic, you may contact the Advocate who authored this article at anrlawfirm@anr-lawfirm.com


Author: Nabawi, S.H.