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IMPLICATIONS OF THE COVID-19 PANDEMIC ON THE IMPLEMENTATION BUSINESS CONTRACTS
Mutia Kartika Putri
Universitas Lampung, Indonesia, E-mail: mutiakartikap@gmail.com
Submitted:February 13, 2023; Reviewed:March 13. 2023; Accepted: March 27, 2023 DOI: 10.2504/iplr.v4i1.2920
Abstract
The spread of Covid-19 has caused many debtors to be unable to carry out their achievements in contracts. The problems in this research are related to force majeure according to civil law in Indonesia, whether what is included in the qualifications for the Covid-19 pandemic can be categorized as force majeure according to Indonesian civil law and the legal consequences of the Covid-19 pandemic related to the implementation of business contracts. This type of research is normative legal research and descriptive research. The results of the study show that the characteristics of force majeure in civil law in Indonesia are not regulated in the Civil Code. Force majeure refers to events that cannot be predicted by humans or are related to natural events. The proof is that the cause of force majeure may not necessarily be categorized as force majeure. Several force majeure characteristics must be met as a reason for force majeure due to the Covid-19 pandemic by the debtor. This shows that the use of force majeure reasons still has a heavy burden and responsibility on the part of the debtor, there are restrictions on the application of force majeure. There are also incidents in the form of the Covid-19 pandemic or government policies that arose as a result of the Covid-19 pandemic. It needs to be reviewed based on the nature of force majeure and the need for propriety or good faith of the debtor even though an event hinders the fulfillment of achievements.
Keywords: Contract, Covid-19 Pandemic, Force Majeure
A. Introduction
The spread of Corona Virus Disease 2019 (Covid-19) has occurred in almost all countries.
WHO (World Health Organization) stated that Covid-19 was a global pandemic in March 2020.
The Covid-19 pandemic had a major impact on all aspects of being a nation, especially on global and national business activities. One of them is Indonesia, where there has been a decline in the wheels of the economy. The Indonesian government has declared the corona virus outbreak as a non-natural national disaster through Presidential Decree Number 12 of 2020 concerning the Stipulation of Non-Natural Disasters for the Spread of Corona Virus Disease 2019 (Covid-19) as a National Disaster. The Covid-19 pandemic has had an impact on business actors in the business world due to the many policies issued by the Indonesian government in the form of lockdown or social distancing policies which have disrupted business entities. This causes many business actors to be unable to carry out their achievements in contracts. In the business world, failure to fulfill achievements is referred to as default. The phenomenon of the Covid-19 pandemic that occurred in Indonesia has had quite a broad impact on various economic activities, such as delays and cancellations of the implementation of business contracts between debtors and creditors, banking which has an impact on debtors who are unable to pay credit, besides that it also has an impact on micro businesses. , small and medium
Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia.
P-ISSN: 2723-259X E-ISSN: 2745-9284 https://jurnal.fh.unila.ac.id/index.php/iplr
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in terms of inability to fulfill obligations on capital. The large number of workers who get terminated even though the contract period has not ended, also greatly affects agreements or various other business contracts. In addition, it has an impact on industrial society, such as the transportation industry to the hotel or other difficulties that cause the community as a debtor to require sacrifice in fulfilling their achievements.
Referring to Article 1338 of the Civil Code that the agreement made by the parties applies as a law for the parties who make it, meaning that the agreement made is binding on the parties to be implemented according to the substance of the contract or known as the principle of pacta sunt servanda. At present, many activities in the execution of contracts have been disrupted, the party obligated to fulfill the performance (debtor) stated that the non-fulfillment of performance in the contract was caused by the Covid-19 pandemic in Indonesia, the debtor considers the spread of the Covid-19 pandemic to be a form of force majeure that hinder him in fulfilling the performance on the contract. The term force majeure is indeed not defined in the Civil Code and several regulations in Indonesia in the civil sphere. However, arrangements regarding force majeure can be seen in Articles 1244 and 1245 of the Civil Code. This article provides for an exception for the debtor's inability or obstruction in fulfilling performance caused by a force majeure. Force majeure serves to protect the parties due to the inability to fulfill performance due to circumstances beyond the fault or negligence of the debtor. The International Chamber of Commerce (ICC), a world trade organization, defines "Force Majeure" as an event or circumstance that prevents or hinders a party from carrying out one or more of its contractual obligations based on an agreed contract. The elements of a situation can be said to be force majeure if it can be proven: (a) that an event occurred beyond his control or was unpredictable; (b) this was unintentional and cannot be blamed on the debtor (c) and the need for good faith from the debtor in fulfilling the achievement even though it was hindered by the unexpected event.1
B. Discussion
1. Characteristics of Force Majeure Based on Civil Law in Indonesia
The principle of freedom of contract in Indonesian Civil Law gives freedom to the parties to the agreement to determine the substance of the clause and the procedure for implementing the contract. At the stage of implementing the agreement, the parties have an obligation to implement it, the debtor's obligation to fulfill what was promised is called achievement. On the other hand, there are times when the implementation of the agreement does not go according to the will of the parties or in accordance with what was previously agreed upon. The occurrence of errors or omissions in the implementation of an agreement can be caused by one of the parties or both parties or can even be caused by a situation beyond the control of the parties. If the parties do not carry out their obligations in accordance with the agreement, then it is referred to as a default. Non-fulfillment of obligations by the debtor can be caused for two reasons, namely:
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a. Due to the fault of the debtor, either intentionally or negligently, And;
b. Because circumstances force ( force majeure ), outside ability debtor
The defense of the party considered to be in default, which in general is the debtor, the debtor can submit a response or defense to free himself from the consequences of the default.
The defense can be in the form of non-fulfillment of performance caused by force majeure , where a force majeure is an unexpected condition, unintentionally occurring out of fault of the debtor without bad faith. Forced circumstances can be seen in Article 1244 and Article 1245 of the Civil Code. This article provides for an exception for the debtor's inability or obstruction in fulfilling performance caused by a force majeure event that occurs beyond his control, meaning
1 International Chamber of Commerce, “ICC Force Majeure and Hardship Clauses”, August 25, 2021 Available Online https://iccwbo.org/publication/icc-force-majeure-and-hardship-clauses/ .
2 Abdulkadir Muhammad, “Hukum Perdata Indonesia", Bandung: PT. Citra Aditya Bakti, (2000), p. 241.
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that there is an element of impossibility. If due to force majeure or unforeseen circumstances it is unable to provide something or does not do something, the debtor must try to show and prove that the non-fulfillment of the agreement is due to a force majeure. Force majeure serves to protect the parties due to the inability to fulfill achievements due to circumstances beyond the fault of the debtor. Based on Article 1244 and Article 1245 of the Civil Code from these two articles, it can be concluded that there are four characteristics of force majeure , namely:
a. There are Unforeseen Events Outside the Power of the Parties
Freedom of contract causes various force majeure arrangements. The problem of what events or circumstances can be categorized as force majeure has given rise to several teachings regarding force majeure . In the history of thinking about coercion there are two teachings or theories, including:
1. The theory of objective force majeure (de objectieve overmachtsleer)
According to this theory, objective coercion occurs when every person whose position as a debtor is no longer possible to achieve according to the agreement in the agreement. There is an absolute or absolute impossibility of achievement. The meaning of objective force majeure is that it is absolutely impossible for everyone to fulfill verbintenis (agreement).3 2. The theory of subjective force majeure (de subjectieve overmachtsleer)
In this theory there is a possibility to fulfill the achievements in the agreement . It is still possible for the debtor to carry out achievements, the emergence of a great difficulty or sacrifice to fulfill these achievements. So that in such circumstances the creditor cannot demand the performance. Relative 4force majeure is defined as a force majeure that does not have an absolute impact that an agreement cannot be implemented.5
In addition, regarding the types of coercive circumstances distinguished in several qualifications by legal experts, including:
a. Force Majeure Based on the Cause
1. Force majeure due to natural factors, namely a forced condition caused by natural circumstances which cannot be avoided by the debtor and without any element of intent. It can be in the form of floods, landslides, or other natural disasters.
2. Force majeure due to social conditions and emergencies, namely a forced situation that is immediate and short-lived without being predictable in advance. It can take the form of war, rebellion, sabotage, labor disputes, fires, pandemics , terrorism, epidemics and other emergencies determined by the government.
b. Based on Scope
1. force majeure , namely force majeure in the form of climate, loss and theft.
2. force majeure , namely a coercive situation in the form of the enactment of a government regulation which makes it impossible to carry out the object of the agreement. In this case, it does not mean that achievements cannot be made.
c. Based on the Subject
1. force majeure is a coercive situation that makes it impossible for anyone to fulfill achievements, in this situation it is based on the theory of impossibility ( impossibility ).
2. Subjective force majeure is a state of coercion that occurs when fulfillment of achievements creates difficulties implementation for debtors. The debtor may still fulfill the achievement, but with great sacrifice or big loss for the debtor (hardship) which gives rise to the right to renegotiate.6
3 Daryl John Rasuh, “Kajian Hukum Keadaan Memaksa (Force Majeure) Menurut Pasal 1244 Dan Pasal 1245 Kitab Undang- Undang Hukum Perdata,” Lex Privatum 4, no. 2 (2016), p. 174.
4 Juswito Satrio, “Hukum Perikatan: Perikatan Pada Umumnya,” Bandung : Alumni, (1993), p. 254.
5 Erniwati, “Konsepsi Force Majeure Dalam Kontrak/Perjanjian Di Masa Pandemi,” Sol Justicia 3, no. 2 (2020): 189–98. p.
166.
6 Rahmat S.S. Soemadipradja, “Penjelasan Hukum Tentang Keadaan Memaksa,” Jakarta: PT Gramedia, (2010), p. 9-10.
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Based on the understanding of force majeure, the writer believes that not all events are unexpected can be categorized as a state of coercion. Force majeure departs from the existence of an event that cannot be predicted by humans, over time whether or not an event that cannot be predicted by humans can develop into several interpretations. There is a certain limit that determines that the situation is circumstances that can be categorized as force majeure . In essence , force majeure arises due to unexpected things, if this has been foreseen, then it is not a force majeure . The debtor is obliged to show that the non-performance of the achievement was caused by things that were completely unforeseen and cannot do anything about the circumstances that arose beyond the expectation. The Covid-19 pandemic can thus be said to be a force majeure caused by government policies, the Covid-19 pandemic can be classified as a relative or temporary force majeure. This means that the implementation of the achievements in the contract is temporarily delayed until a certain time limit. In such a coercive situation, the debtor cannot do anything, in other words, the non-performance of the agreement or the delay in implementing it is not caused by negligence. To determine whether a debtor has defaulted, it must first be proven whether there is an element of good faith or not on the part of the debtor.
7The debtor cannot be said to be negligent, if a forceful situation occurs beyond his fault, then the debtor may not be subject to sanctions that threaten negligence. Thus the event is not a force majeure, then the losses incurred due to the failure to fulfill the achievements in the agreement are the responsibility of the Defendant as a debtor and the force majeure argument is not proven so the Defendants have been declared in default.
b. Cannot Be Accountable To Debtors
The occurrence of this coercive situation will greatly affect the implementation of the agreement, which can be in the form of delays in the fulfillment of the debtor's achievements or not being implemented perfectly by the debtor. In the event of a force majeure, it will refer to the provisions of Article 1245 of the Civil Code which states that "No costs, losses and interest must be reimbursed, if due to coercive circumstances or due to an unintentional circumstance, the debtor is unable to provide or do something that is required or because of the same things have done forbidden deeds.” The provisions regarding force majeure mean freeing the debtor from the obligation to fulfill his achievements and the bad consequences in the form of compensation. However, there are exceptions to this general provision, namely that the risk of force majeure is a burden that must be borne by the debtor. That is why force majeure is referred to as a justifying legal basis or rechtvaardigingsgrond. So that it can be concluded in the provisions of the Civil Code that for the occurrence of force majeure there are two relevant consequences, including the debtor being aborted of his obligation to compensate, as well as the fall of the debtor's achievement obligation. If it is proven that there is a coercive situation, then the debtor will escape punishment to bear the risk of an agreement. In other words, force majeure legally prevents the debtor from fulfilling the performance.
c. The Debtor's Efforts to Avoid the Event (Good Faith)
Force majeure departs from the existence of an event that cannot be predicted by humans, over time whether or not an event that cannot be predicted by humans can develop into several interpretations. There is a certain limit that determines that the situation is circumstances that can be categorized as force majeure . Even though there are events that hinder the parties from fulfilling their achievements, the parties in this case are generally debtors who are obliged to make every effort that can be made to avoid this situation. Even though there has been an element of an event that occurred outside the control of the parties, it is not automatically used as a reason or for eliminating the debtor's responsibility in fulfilling the agreement. The debtor needs to make efforts or good faith in the event of such force majeure. All agreements must be executed in good faith. At the pre-contractual stage, there is subjective good faith, while
7 Dermina Dalimunthe, “Akibat Hukum Wanprestasi Dalam Perspektif Kitab Undang-Undang Hukum Perdata (Bw),” Jurnal Al-Maqasid: Jurnal Ilmu Kesyariahan Dan Keperdataan 3, no. 1 (2017): 12–29. p. 14.
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objective good faith exists at the contractual stage. The objective meaning of good faith is propriety and is in the contractual stage.
This happens because during the contractual stage the contents of the agreement in the form of rights and obligations must be carried out in good faith as well. At this contractual stage, the judge has the authority to assess whether the agreement is appropriate or not. Objective good faith aims to resolve disputes about the contents or rights and obligations in the agreement. The law only states that the contract must be carried out in good faith, it must have existed from the pre-contractual to the post-contractual stage.8 The principle of good faith is the way out for contract renegotiation, either in the form of rescheduling , restructuring or reconditioning . The results of the agreed renegotiations can be included in an addendum to the contract.9 A coercive circumstance is not a condition or event that occurs beyond mere human capacity or is caused by a natural disaster, but it is also necessary to look at the propriety of the debtor in fulfilling his achievements in the agreement. If an unexpected circumstance occurs which does not necessarily qualify as a coercive circumstance, it is necessary to see and prove that in the occurrence of such an unforeseen circumstance there was a good intention or effort made by the Defendant in fulfilling his achievements, if it has been carried out efforts, the Defendant should not be subject to the bad consequences of default.
d. There is a Burden of Proof on the Debtor in Proving Force Majeure
Debtors who are considered negligent and are subject to punishment for their negligence, can submit a defense to be free from punishment in the form of compensation. 10With this defense, the debtor is obliged to prove that the performance in the agreement was not fulfilled due to unexpected things/events beyond his control. The law gives the same award to the debtor to be able to maintain his contractual rights, by submitting a defense for non-performance of the obligations in the contract caused by an unintentional and previously suspected circumstance, namely force majeure and not due to negligence or intention. Regarding force majeure arrangements regulated in Articles 1244 and 1245 of the Civil Code. Article 1244 of the Civil Code refers to the debtor's obligation to prove the existence of a coercive situation that hinders him from fulfilling his achievements. In essence, these two articles provide freedom for compensation caused by an event, namely force majeure. As well as there is a heavy burden of proof for the debtor in proving the occurrence of an unexpected and intentional situation which causes the achievement in the agreement to not be fulfilled. Having arranged and agreed upon the clause regarding force majeure by the parties, it appears that the debtor in carrying out his performance is given a protection and relief for him. Evidence related to force majeure itself is currently a tool for self-defense, but in its use, it has a heavy responsibility by the debtor . So if the debtor feels that a coercive situation has occurred in fulfilling the achievements he has made , the debtor must prove this event. Only a debtor can state a force majeure based on the elements of a force majeure legally according to law. The parties must understand and be able to distinguish the negligence of the parties or the emergence of negligence due to force majeure.
There is a theory regarding efforts or inspanning related to force majeure, that force majeure is said to exist if the debtor makes efforts that are appropriate based on the obligations in the agreement.11 As we know that in agreements the parties usually have agreed on what constitutes a force majeure and what the responsibilities of the parties are in the event of a force majeure.
However, in practice the clauses and matters that have been agreed upon in the agreement are still being debated regarding the proof. This is where the role of the judge is needed to be able to provide an assessment of the facts and evidence submitted by the litigants at trial, whether it
8 Subekti, "Hukum Perjanjian", Jakarta: PT. Intermasa, (2005), p. 7
9 Arie Exchell Prayogo Dewangker, “Penggunaan Klausula Force Majeure Dalam Kondisi Pandemik,” Jurnal Education and Development 8, no. 3 (2020): 309. p. 310.
10 Subekti, Op. Cit , p. 55.
11 Inri Januar, “Pelaksanaan Prestasi Dalam Keadaan Memaksa Yang Terjadi Pada Masa Pandemik,” To-Ra 6, no. 2 (2020):
185–92. p. 124.
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is true that an achievement was not fulfilled due to coercive circumstances or whether there was an element of error or negligence committed by one of the parties.
2. Covid-19 Pandemic as a Force Majeure Based on Civil Law in Indonesia
Covid-19 pandemic has implications for many policies, one of the steps taken by the Indonesian government to implement physical distancing to suppress the spread of the Covid- 19 virus in Indonesia. The pandemic has had an impact on various activities in the economic sector, such as hampering the flow of land and air transportation. Apart from that, in the business sector, consumers feel disappointed because almost every country has implemented a lockdown policy , restrictions on community activities, so that many business people whose activities temporarily closed. 12The Indonesian government in Presidential Decree No. 11/2020 regarding the Establishment of Public Health Emergency Status, stipulates that the corona virus is a disease outbreak that can cause a public health emergency. 13In addition, through PermenKes No. 9/2020 concerning Guidelines for Large-Scale Social Restrictions in the Context of Accelerating the Handling of Covid-19. As well as Presidential Decree Number 12 of 2020 concerning Designation of Non-Natural Disasters with the Spread of Covid-19 as a National Disaster. The Indonesian government implements health protocols to break the chain of distribution of covid-19, this policy is a benchmark in mitigating the impact of the covid-19 virus outbreak on exposed populations. The Indonesian government is implementing a globally proven approach to fighting this virus by prioritizing sanitation, especially hand hygiene and social distancing. This government action is in line with international protocols with the emergence of many legal policies, such as bans on traveling, especially to the countries with the largest spread in order to avoid imported cases of Covid-19 . 14Especially in Indonesia this determination was due to the spread of Covid-19 which had an impact on the high number of victims and loss of property, the wider area coverage due to the Covid-19 disaster , and its implications for various social aspects of society. These restrictions have an impact on all community activities and also have an impact on the wheels of economic activity and the business world which greatly affect the sustainability of business agreements. This situation causes the mode of the economy not to work.15
The current pandemic phenomenon cannot eliminate the responsibilities of the parties in the agreement on the basis of exemption from compensation due to force majeure. 16This condition directs the Covid-19 pandemic as a temporary or relative force. The theory of force majeure is relative, meaning that there is still a possibility for the debtor to fulfill the achievements in the agreement. However, due to certain circumstances, the submission was delayed. meaning that there is a coercive situation and if the debtor is still able to carry out the achievement, but practically with great difficulty or sacrifice (there is an element of difficulty), so that in such circumstances the creditor cannot demand the implementation of the achievement. 17In Indonesian Civil Law, events that can be categorized as force majeure if the conditions have been fulfilled, namely the occurrence of the event was not previously suspected by the parties , the occurrence of force majeure was not caused by the mistakes of the parties and the parties were not in bad faith. 18Articles 1244 and 1245 of the Civil Code can be used as
12Satgas.Penanganan.Covid-19, “Data Sebaran2021”, Juni, 8, 2021. Available Online https://covid19.go.id/.
13 Bayu Kurniawan dan Arikha Saputra, “Covid-19 Sebagai Keadaan Memaksa (Force Majeure) Dalam Pemutusan Hubungan Kerja,” Legal Brief 11, no. 3 (2022): 1501–12. p. 338.
14 Hamzah dan Yusdianto, “Information on Corona Virus Disease-19: Between the Public’s Right and State’s Interests,” J.
Advanced Res. L. & Econ. 11 (2020): 820. p. 6.
15 R. Nugraha dan Sri Lestari Poernomo, “Analisis Pandemi Corona Virus Disease 2019 Sebagai Alasan Keadaan Memaksa (Force Majeure) Menurut Hukum Perdata Di Indonesia,” Journal of Lex Generalis (JLG) 2, no. 3 (2021): 917–30. p. 912.
16 Putu Bagus Tutuan Aris Kaya dan Ni Ketut Supasti Dharmawan, “Kajian Force Majeure Terkait Pemenuhan Prestasi Perjanjian Komersial Pasca Penetapan Covid-19 Sebagai Bencana Nasional,” Kertha Semaya: Journal Ilmu Hukum 8, no. 6 (2020): 891–901. p. 899..
17 Mariam Darus Badrulzaman, “Kompilasi Hukum Perikatan,” Bandung: PT Citra Aditya Bakti, (2001), p. 27.
18 Rifqi Hidayat dan Parman Komarudin, “Tinjauan Hukum Kontrak Syariah Terhadap Ketentuan Force Majeure Dalam Hukum Perdata,” Syariah: Jurnal Hukum Dan Pemikiran 17, no. 1 (2018). p. 14.
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a basis for defense by the debtor or as a reason for eliminating compensation for non- performance in the agreement, without the debtor's bad faith in carrying out the performance.
Provisions regarding force majeure, whether stated in the agreement or not, in essence can still be used as a basis for defense by the debtor to avoid the obligation to compensate.
So in order to say that the Covid-19 pandemic is a force majeure in the agreement, it is necessary to look at the arrangements regarding the clauses in the agreement. If the agreement does not stipulate in detail regarding the force majeure clause whether caused by natural events or anything else , then what must be observed is the type of whether a situation or event becomes an absolute obstacle to the non-performance of an agreement. Obstacles in the implementation of the achievements in the agreement can be seen from the many business entities that are not operational and hampered . This can be used as an excuse if the party unable to carry out the achievements in the agreement is able to prove in court the Covid-19 pandemic as a force majeure. In addition, it is necessary to review whether the Covid - 19 pandemic which is used as the reason for eliminating achievements has causality between cause and effect which has a direct impact between the pandemic and the non-performance of these achievements. Based on the characteristics of the force majeure that the author has described above by looking at an event or phenomenon of the Covid-19 pandemic that has become endemic in Indonesia, it has resulted in many contracts or agreements not being implemented or being obstructed. Based on the characteristics of force majeure , the author will analyze one by one whether the Covid-19 pandemic is included as a force majeure based on Indonesian Civil Code:
a. The existence of an unexpected event beyond the power of the debtor, regarding any event that is included in a force majeure is indeed very broad, not only covering acts of God, such as floods, earthquakes, fires, pandemics, sabotage, war, terrorism, embargoes and sanctions against a government . 19But it has expanded based on a growing theory. If it is related to the phenomenon of the Covid-19 pandemic that occurred in Indonesia, the Covid-19 pandemic has fulfilled the characteristics of an unexpected event that occurred outside the debtor's power. In connection with the spread of the Covid-19 pandemic almost all over the world, especially in Indonesia, it has caused all community activities, including delays in the running of business contracts for the parties. Article 1 paragraph (3) Law Number 24 of 2007 concerning Disaster Management, states that non-natural disasters are disasters caused by non-natural events or series of events which include technological failures, modernization failures, epidemics and pandemics. So based on that article, it can be said that pandemics and disease outbreaks can be qualified as non-natural disasters because of a series of non-natural events. The World Health Organization (WHO) has determined that Covid-19 is a pandemic. This is in accordance with the Government of Indonesia through Presidential Decree Number 12 of 2020 concerning the Designation of Covid-19 as a National Disaster. Even though WHO has declared Covid-19 a pandemic, it does not necessarily mean that the COVID-19 pandemic can immediately be used as a justification for canceling an agreement on the grounds of force majeure or coercive circumstances.
There are several elements that force majeure can be used as a reason to cancel the contract in the contract law. The interpretation and application of force majeure clauses during a pandemic such as Covid-19 is up to the court and generally the court examines all contracts.
b. Unable to be Accountable to the Debtor, regarding accountability in the event that the debtor's performance in the agreement is not carried out due to a coercive circumstance has indeed been regulated in Article 1244 of the Civil Code. In this article, it has been stated that if the debtor can prove the obstruction of a force majeure, he will be free from the bad consequences of default in the form of compensation. In this case the Covid-19 pandemic
19 Laras Sutrawaty, “Force Majeure Sebagai Alasan Tidak Dilaksanakan Suatu Kontrak Ditinjau Dari Perspektif Hukum Perdata”, Tadulako University, Vol 4, No 3, (2016). p. 6.
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based on the force majeure characteristics above has been fulfilled as a force majeure event by researchers. This means that the Covid-19 pandemic is an event or event that occurs suddenly which is endemic to almost all regions of Indonesia, and has been designated as a non-natural event through Presidential Decree Number 12 of 2020 concerning the Designation of Covid-19 as a National Disaster. With the stipulation of the Covid-19 pandemic as a national disaster, the bad consequences of circumstances that hinder debtors from fulfilling their achievements cannot be accounted for to the debtor. The stated Covid- 19 as the reason for using the force majeure clause needs to be understood in the context of the principle of justice for the parties bound to the agreement. The existence of termination of obligations or temporarily must be balanced with the fulfillment of rights in the agreement. If the Covid-19 pandemic is seen, which is considered a force majeure , it will have implications for the implementation of the agreement. So, the parties are not obliged to bear any losses or fines as specified in the contract made between the creditor and the debtor. 20If the obligations in the contract are not carried out on purpose but are caused by the Covid-19 pandemic. So the creditor cannot ask for compensation, because previously there were factors beyond reasonable control due to external factors.
c. The Debtor's Efforts to Avoid the Event (Good Faith), if it is associated with the outbreak of the Covid-19 pandemic with the implementation of the agreement in Indonesia, has a very large impact. Many agreements were blocked or even not implemented as a result of government policies in the form of Large-Scale Social Restrictions (PSBB). One of the characteristics of force majeure is the existence of good faith or the need for efforts from the debtor to fulfill the achievements in the agreement even though it is hindered by a force majeure. This means that even though the elements of a force event have been fulfilled but not accompanied by good faith efforts by the debtor to try to fulfill the agreement, then this situation cannot necessarily be said to be a force majeure. The outbreak of the Covid-19 pandemic in Indonesia does not necessarily make the debtor free in carrying out contractual performance, because based on the author's analysis the Covid-19 pandemic is included in the qualifications of relative or temporary force majeure . This means that there are events that hinder the debtor from achieving only temporarily, the debtor is still obliged to fulfill the achievement when the coercive situation has disappeared.
d. There is a fairly heavy Burden of Proof on the Debtor in proving a Force Majeure , based on the force majeure characteristics that the researcher has described above that if the three force majeure characteristics have been fulfilled . So there is one more thing that must be fulfilled, namely proving the debtor in proving a force majeure. The debtor is required to prove the Covid-19 pandemic as a coercive circumstance that hinders him from fulfilling the achievements in the agreement. This proof becomes a burden for the debtor if he wants to be free or apart from the bad consequences of default in the form of compensation. The debtor is obliged to prove the occurrence of a legally coercive situation before the court, stating whatever is the basis of his innocence due to non-performance in the agreement. So that if the debtor succeeds in proving that the non-performance of the agreement was caused by a force majeure, then the creditor cannot demand the implementation of the agreement as it should.
3. The Legal Consequences of the Covid-19 Pandemic on the Implementation of Business Contracts
The agreement made by the parties applies as law for the parties who made it because the agreement occurred and was formed based on the agreement of the parties. Talking about the contents of the agreement which basically contains an agreement regarding the rights and obligations of the parties , as well as other provisions related to the implementation of the
20 Sri Mustikasari,M Saleh and Abdul Qahar, “Wanprestasi In,The Construction,Service Agreement In,The General Working,And Spatial Service,” Meraja Journal 3, no. 2 (2020): 207–18. p. 210.
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agreement to provide protection and clarity if in the implementation of the agreement a dispute occurs between the parties. One of these other provisions contains the clause of force majeure . Force majeure is a situation where a debtor is prevented from carrying out his performance due to unforeseen circumstances or events at the time the contract was made, not on purpose and not caused by the debtor's fault and the absence of bad faith on the part of the debtor. There are two sides of the legal consequences of the Covid-19 pandemic on the implementation of the agreement for the parties.
First, if the debtor is deemed negligent, then he can file a defense to free himself from default. The debtor is obliged to prove that the non-fulfillment of the achievements in the agreement is caused by things or events that cannot be predicted so that he cannot do anything about circumstances that occur beyond his control. The affected group cannot fulfill their achievements perfectly, so they can be classified as a coercive situation and cannot be asked for compensation. If the debtor has not carried out the performance by the time limit, he can renegotiate the contract, such as delaying the fulfillment of the achievement or extending the time until the debtor has the ability to fulfill the achievement. 21The continuation of the force majeure resulted in the failure to carry out the achievements agreed upon by the parties. So that the emergence of consequences of coercive circumstances for the agreement and the parties, such as:
1. The debtor is not obliged to provide compensation (Article 1244 of the Civil Code);
2. Risks do not transfer or change, especially relative or temporary force majeure;
3. Creditors cannot demand fulfillment of obligations or achievements;
4. The debtor can no longer be declared negligent.22
Second, if a debtor cannot prove that the non-implementation or obstruction of the implementation of the agreement is due to a coercive situation in the form of the Covid-19 pandemic , then the debtor must carry out the agreement in full or may be declared negligent.
Debtors who do not carry out the performance according to the contents of the agreement will get bad consequences in the form of compensation for default. Because in essence force majeure arises due to unexpected things, in other words if this has been suspected before then it is not a force majeure . Thus, if the debtor cannot prove that the Covid-19 pandemic occurred as a force majeure, then the losses incurred due to the failure to fulfill the achievements in the agreement are the responsibility of the debtor and the argument for the Covid-19 pandemic is not proven as a force majeure , then the debtor has been declared a default . Default is regulated in Article 1238 of the Civil Code which in essence a person is said to have defaulted if he is unable to carry out an achievement due to an error either due to an intentional or negligent element. The forms of default are:
1. Does not fulfill the achievement at all;
2. Carrying out achievements but not on time (late);
3. Carry out achievements but not appropriate; And
4. The debtor does what according to the agreement may not be done;
So it can be concluded that force majeure cannot be applied to every debtor, but can only be applied to debtors who actually have forced circumstances. This only applies to debtors whose income is disrupted so that they cannot fulfill their achievements in the agreement.
Meanwhile, debtors who have regular and regular income are not subject to force majeure as a reason for not fulfilling their obligations.23 Temporary Force Majeure or relatively occurs if there is a possibility to carry out the achievement, but it is necessary to make sacrifices for its implementation. For example , the current Covid-19 pandemic has hampered the speed of cross-
21 Aminah, “Pengaruh Pandemi Covid 19 Pada Pelaksanaan Perjanjian,” Diponegoro Private Law Review 7, no. 1 (2020): 10–
16. p. 654.
22 Salim H.S, "Pengantar Hukum Perdata Tertulis (BW)", Jakarta : Sinar Grafika, (2008), p. 184-185.
23 Bambang Eko Muljono dan Dhevi Nayasari Sastradinata, “Keabsahan Force Majeure Dalam Perjanjian Di Masa Era Pandemi Covid-19,” Jurnal Humaniora: Jurnal Ilmu Sosial, Ekonomi Dan Hukum 4, no. 2 (2020): 256–63. p. 260.
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country transportation due to the lockdown policies implemented by several countries. This makes the space for business actors to become narrow. In addition, rescheduling business relations meetings between countries makes it difficult to fulfill an agreement perfectly.
According to the 24author, the current phenomenon of the Covid-19 pandemic is a relative or temporary force majeure. In this theory it is still possible for the debtor to carry out the obligations of the agreement, but the delivery of achievements is hampered by one thing, so that in practice there will be considerable difficulties (hardship ). In such circumstances, a creditor cannot demand the fulfillment of achievements in a delayed agreement. So if the debtor feels that a coercive situation has occurred in fulfilling the achievements he has made , the debtor must prove this event. Only a debtor can state a force majeure based on the elements of a force majeure legally according to law. The parties must understand and be able to distinguish between negligence caused by coercive circumstances or vice versa caused by the parties to the agreement, because in essence the parties want the implementation of the agreement to run smoothly with the principle of good faith and when a force majeure arises, there will be a party that is harmed.
C. Conclusion
Based on the things mentioned above, conclusions can be drawn in the form of: First , the legal relationship between the provider and the consumer is marked by the existence of a registration agreement. The provider as in this case is the party that formulates the agreement in the form, while the consumer only agrees and follows the agreed terms. In addition to filling out the form provided by the provider, consumers are also required to send personal data to the provider, in the form of NIK, biological mother's name or KK number via text message or service contact center available as a sign of registration.
This starter pack registration then creates rights and obligations for providers and consumers in the provision of telecommunication services .
Second , the provider is responsible for maintaining the legitimacy, accuracy, correctness, confidentiality and suitability for the purpose of obtaining, collecting, analyzing, processing, disseminating, posting, displaying, storing and destroying as permitted by laws and regulations.
This legal responsibility is not limited to the acts committed by the provider, but also by other parties who are still under their supervision and responsibility.
Third , consumers who fail to protect the confidentiality of their personal data can take legal remedies in the form of: complaints to the Minister, through the district court by filing a lawsuit against the law or through alternative dispute resolution institutions, and punishing the provider.
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