Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)
Previously, the Hukumindo.com platform has talk about "Contoh Pledoi Pribadi (Karen Agustiawan)" you may read also "What Language Must Be Used In The Agreement In Indonesia?", "Procedure for Processing Lost Passport For Foreign Nationals In Indonesia" and on this occasion we will discuss about 'I have a contract whose goods have not been delivered, how do I sue under Indonesian law?'
Two years ago I entered into an agreement with a company in Indonesia in the footwear sector. At first the promised goods were delivered to our country smoothly, but after about 6 (six) months the company in Indonesia no longer sent the promised goods due to the Covid-19 pandemic. I suffered a loss because I am also bound by an agreement in my country with local distributors, how can I sue the company in Indonesia?
We assume that you are bound by an agreement with a company in Indonesia in good faith. Therefore, the provisions of Article 1320 of the Civil Code concerning Terms of the validity of the agreement apply. As a logical consequence, the provisions of Article 1338 paragraph (1) of the Civil Procedure Code which stipulate that all agreements made legally apply as law for those who make them.
Like a common business cooperation between countries, there is usually a written document between the Parties who make it. Since you did not clearly state which law governs in the event of a dispute as regulated in the agreement document, we assume that Indonesian law governs it. This is also supported by your statement that intends to sue the company in Indonesia.
Breach of Contract Lawsuit
If we analyze it in a simple way, then the legal remedy that you can take later is Breach of Contract lawsuit. Simply put, a breach of contract/default is breaking a promise or not keeping a promise. Breach of Contract can also be interpreted as an attitude in which a person does not fulfill or neglects to carry out obligations as specified in the agreement made between creditors and debtors. Breach of contract/default is regulated in Article 1243 of the Civil Code.
The elements of Breach of Contract/Default are:
- There is an agreement by the parties;
- There are parties who violate or do not carry out the contents of the agreement that have been agreed upon;
- It has been declared negligent but still does not want to carry out the contents of the agreement.
Based on the description above, it can be understood that a breach of contract/default is a condition in which the creditor or debtor does not/negligently implement the agreed agreement.
The 'Actor Sequitur Forum Rei' Principle Applies
In general, for civil lawsuits, the filing of a lawsuit is based on the principle of 'Actor Sequitur Forum Rei'. This principle is regulated in Article 118 paragraph (1) of the Herzien Inlandsch Reglement (“HIR”) which stipulates that the one authorized to adjudicate a case is the District Court where the defendant resides.
In practice, if it is related to the Limited Liability Company Law, the domicile of the company in Indonesia is in the Regency or City administrative area. Therefore, it is the relevant District Court that has the legal competence to adjudicate your lawsuit later. For example, if the company is legally domiciled in North Jakarta, then the North Jakarta District Court has the competence to adjudicate your lawsuit. If the company is legally domiciled in Tangerang Regency or Tangerang City, then the Tangerang District Court has the competence to adjudicate the case. If the company is domiciled in Bekasi Regency, then the Cikarang District Court has the competence to adjudicate your case, and so on.
And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.
*) For further information please contact:
Mahmud Kusuma Advocate
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
1. Civil Code.
3. Herzien Inlandsch Reglement (“HIR”).