“Review dan Commentary Journal Of The Effects of Non-Performance of
Contract as a Result of Frustration of Purpose”
This report arranged to fulfill one of assignment Obligations Law
Lecturer: Ayup Suraningsih S.H., LL.M
Arranged by :
Rizky Noor Fajrina 8111416329
FACULTY OF LAW
UNIVERSITAS NEGERI SEMARANG
SEMARANG
2017 Article Title : The Effects of Non-Performance of Contracts as a Result of Frustration of Purpose
Journal Title : Journal of Politics and Law
Volume : 10
Number :2
Year : 2017
A. Discussion
After making the contract, the parties must deal efficiently. Whenever any party for any reason refuses to do so, in accordance with Article 237 of the Civil Code, the other party shall have the binding right to enter into the agreement. If the implementation of the agreement is not possible by the contracting party, he will have the right to do so by others but at his own expense. Finally, if the execution of the contract is not possible, the party has the right to terminate the transaction. However, in some cases, contractual waiprases are not grounded in the refusal of liability. In that case, we can separate the three categories of factors from each other:
1. Factors associated with the required person (except the refusal to enter into contract) 2. Factors related to liability 3. Factors associated with the contract.
Sometimes, without the impossibility of contracting and operating the subject,
conditions arise that affect the parties goals and frustrate them and in other words, they make the contract useless. In this case, contracting does not face financial or legal issues, but the parties' intentions are no longer accessible. For example, during a contract, some people do so because stopping walls on walls causes some walls to prevent flooding, but before or during contracts, the river dries up or
1 alters its path. In this case, contracting legally and financially may occur, but does not meet the parties objectives.
Everyone shall be obliged to perform obligations in accordance with his
contract. This requirement comes from the impact and description of each contract communicated in Articles 219 and 220 implying it as well as other legal articles. Any breach of contract, whose conduct is unproblematic, his deferred act, or of a low quality shall be regarded as a breach of the treaty and cause liability and the responsible party shall compensate for any imposed loss to another party under Article 221. Responsibility for compensating damages resulting from breach of contract is called contractual liability that is of the type of civil liability and is considered as an automatic guarantee.
One of the causes of the waiver of civil liability is a force majeure distraction that cuts off the relationship between the person and forced damage and leads to the release of compensation. In this case, when the performance of a contract becomes impossible due to external factors that can not be avoided and damage imposed on the other party and the party who has not been able to perform his contract will not be responsible. The impossibility of entering into a contract will exempt from the obligation of contracting and does not guarantee it temporarily, refusing to fulfill the contract constitutes a violation and causes contractual liability. If the service provider arbitrarily ceases to provide the service, he or she is liable for damages imposed on others; But if he can not provide services for reasons not experienced such as illness or illegal detention, in this case he is not responsible for non-performance not because of failure, but related to force majeure.
It is important to pay attention to this aspect of the petition, which is the
obligatory release that has not been able to execute its contract due to the emergence of force majeure and emphasizes the important effects of this force majeure in Articles 227 and 229 of the Civil Code. Article 227 of the civil law states "The person required to be sentenced to pay damages and damages when he / she can not prove that the offender is not performing has been prosecuted for an external reason and can not be attributed to it". Moreover, Article 229
2 provides "If the party is unable to do his contract because of an event that can not be disposed of by him, he will not be sentenced to pay damages".
In English law, the doctrine of contract frustration is set in this field. The doctrine of frustration has been defined as the forced cancellation of the contract because of the emergence of a defense and a fundamental change in the conditions of the contract. In countries that have written their laws, force majeure is usually used as a defense against contract role claims and the reason (release) is exempted from responsibility without necessity in order for the defense to lead to the cancellation of the contract. In English law, the subject is different and the first effect of the impossibility of committing is the cancellation of the contract. As soon as the application appears, the contract is canceled, without having to resort to the technical mechanisms mentioned above.
Instead of contractual dismissal, the impossibility of contracting in some cases
can provide deliberative cancellation conditions and create the right to cancel contracts for either party. If there is an absolute defense and impossible contract execution, there is no doubt about the forced dissolution; such as where there is a temporary appeal, but contracting is desirable only for a limited time; or where the petition is partial but the contract consists of an indivisible whole. If the defense does not reach this level, the contract can not be considered dissolved, but the cancellation may be done by the contractor. In civil law, that possibility has been predicted in some cases.
Article 240 of the civil code is another article which may be interpreted in accordance with the deliberation of the contractual dissolution. This Article states that: "After the contract, if the contract becomes impossible or it becomes clear that it is impossible at the time of making the contract, the person benefiting from the contract will have the authority to cancel the transaction." The possibility of canceling the contract due to frustration of objectives has not been filed in the Act English. In the doctrine of frustration that the impossibility of contracting out of frustration of purpose is one of its effects, the impossibility of undertaking to dissolve the contract without the role of the will of the parties. The effect of the dissolution of the contract is about the future and has no effect in the past; but the
3 rights and commitments of the parties to the dissolved contract can still be discussed. As a general rule, the effect of dissolution of the contract is related to the time of filing the application and the contract is appropriate to date. However, regarding past parties' relationships and their rules and obligations, several issues have to be clarified.
When a contract is dismissed for improper conduct, one party may have incurred some cost or work-related damage to execute the contract. Damage can be a direct result of frustrating events. The condition of party rights at the time of the dissolution of the contract because the request is discussed in the previous section. In international contracts, it is rare that force majeure abruptly dissolves the contract. In the seventh paragraph of text filed by the International Chamber of Commerce as a condition of force majeure, the possibility of suspension of the contract as the petition has been filed.
B. Comments To This Journal
In my opinion, each party should perform their obligations contained in the
contract because there is an agreement so that there will be a contract or agreement. But in reality sometimes some situations can lead to the breakdown of an agreed contract. Contracts can not be executed under frustration frustration here is circumstance force majeure because according to this theory its condition which is an impossible contract terms or in the case of finance is possible to do so, does not meet the parties' expectations of the contract in fact. The other party caused some damage, then the person has no responsible ability. One of the reasons for this statement is the breakdown of the ability of civil law to be a force majeure distraction. In general, the relationship between people and damage occurs and causes him to be free from compensation. Then, the appropriateness of what is written from this article, the strong influence of the impossibility of the contract are:
1. Liberation of a person from a responsible liability
2. Termination of contract 3. Contract suspension
4 So according to this journal if there is a state of force or force majeure a person's duty is void so he can not be said wanprestasi due to force circumstances or force majeure which is an exception. Force majeure which is a state of coercion such as the situation of natural disasters (earthquakes, volcanoes, flash floods, etc.) so that one can not perform its obligations.
