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Obligations Law Assignment

“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

Ayup Suraningsih S.H., LL.M

Arranged by :

Rizky Noor Fajrina 8111416329




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
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

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

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

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

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

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.