In social life, surely that the people to another will be carrying on a transaction. One of these transactions can be obtained with a consent in the form of an agreement, this matter referred to Article 1313 of the Civil Code which stated that an agreement is an act pursuant to which one or more individuals commit themselves to one another. Hence, it cannot be denied that there is a condition where the agreement is executed in verbal. Therefore, how is the validity, implication, and the authentication of the verbal agreement?

In principal, Article 1338 of the Civil Code stated that all legally executed agreements shall bind the individuals who have concluded them by law, which also known as the principle of pacta sunt servanda. Furthermore, Article 1320 of the Civil Code stated the conditions for the validity of an agreement as follows:

1.           The consent of the individuals who are bound thereby;
2.           The capacity to conclude an agreement;
3.           A specific subject;
4.           An admissible cause.

Subsequently, the agreement must be implemented by upholding the good faith of the Parties. Thus, if the people and another have fulfilled four conditions as referred to Article 1320 of the Civil Code, then the agreement is valid and applies to those who become parties in the agreement. Afterward, the agreement will caused that the agreement cannot be revoked otherwise than by mutual agreement, or pursuant to reasons which are legally declared to be sufficient.

Referred to the conditions for the validity of an agreement, should be underlined that there are no conditions regarding the form of the agreement itself. Subsequently, in the Indonesian Civil Code it is known as the principle of freedom of contract where every people is free to make the agreements with anyone, anywhere, and anytime.

Meanwhile, according to Prof. Subekti the scope of the principle of freedom of contract is:

a.      Freedom to make or not make an agreement;

b.      Freedom to choose the party who want to enter into an agreement;

c.       Freedom to determine or choose the cause of the agreement to be made;

d.      Freedom to determine the object of an agreement;

e.      Freedom to determine the form of an agreement;

f.        Freedom to accept or deviated the optional law provisions.

Therefore with the existing of the principle of freedom of contract, then the parties who make an agreement is free to determine the form of an agreement which in this case is a verbal agreement. However, it is not uncommon that the verbal agreement will caused a problem which concerning about how to prove the existence of the verbal agreement.

It should be known that Article 1865 of the Civil Code stated that anyone who claims to have any right, or who refers to a fact to support such right or who objects to another party’s right, shall prove the existence of such right, or such fact. Referring to the article, for the people whom make a verbal agreement is obligated to prove the existence of a legal connection for those who make such verbal agreement. Furthermore, the evidence based on article 1866 of the Civil  Code is contains of written evidence, evidence presented by witnesses, the interference, the confession, and the oath. Therefore, one that can be used as the evidence for verbal agreement is the presence of witnesses. The witness as referred to is not enough with just one person, this matter is confirmed by the element of Unus Testis Nullus Testis as referred to Article 1905 of the Civil Code which stated the statement of a single witness, in the absence of any other means of evidence, shall not be accepted in court. Hence, should be noted that the confession from the witness shall be accompanied by another evidence to ensure legal certainty from proving a verbal agreement.

 Based on the explanation above, the existing of principle of freedom of contract is made a verbal agreement can be implemented by the people who wants to make the agreement, which based on the Principle of Pacta Sunt Servanda. Furthermore, the people must fulfilled the conditions which stated in Article 1320 of the Civil Code so that the agreement is valid. Then, the Parties should include more than one witness with evidence for the making of verbal agreement as a proof of the existence of the legal connection between the Parties that involved in the verbal agreement.  This matter is done so that if there are legal problem in the future, the validity of the verbal agreement can be recognized.

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 : Adzaniar Dwi Fortuna, S.H.