Julienna Hartono (2020) Tanggung Gugat Pra Kontrak Dalam Jual Beli Atas Dasar Negosiasi Dengan Itikad Buruk. Skripsi thesis, UNIVERSITAS AIRLANGGA.

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Abstract

Sale and purchase contract is an essential contract. The agreement on goods and prices was obtained through negotiations. Thus, negotiation has a very crucial role in sale and purchase contract. However, despite its crucial role, there is a lack of legal rules regulating the rights and obligations of the parties during negotiations. Good faith in negotiations has been regulated in Article 1338 (3) BW, however, this regulation has not provided a solution because of the abstract meaning of good faith. As a result, many parties suffered losses during the negotiations without obtaining legal protection. Therefore this study will analyze the criteria for bad faith in the sale and purchase contract negotiations and the legal consequences for parties with bad faith in the sale and purchase contract negotiations. This legal research uses a statute approach, conceptual approach, comparative approach (compared to Dutch law), and a case approach. Then the legal material obtained will be analyzed using the legal construction method and deductive reasoning. From the analysis of legal materials, the criteria for bad faith in the negotiation of sale and purchase contracts can be obtained from sectoral laws and regulations, international legal principles, as well as expert opinions e.g. misleading opponents, using coercion, deception and / or abusing circumstances during negotiations, withdrawing from negotiations without clear reasons when negotiations have reached the final stage, failing to explain and examine all material facts related to buying and selling, etc. Then, the legal consequence for parties with bad faith during the sale and purchase negotiations is that they are obliged to pay compensation, which is called pre-contractual liability. Part of the pre-contractual liability has been regulated in BW (Article 1446 BW- Article 1456 BW) as long as it is regarding cancellation or termination of the contract due to violating the legal terms of the contract. The rest of the party that is injured in the negotiation can sue based on unlawful acts, and obtain compensation limited to reliance interest (materiil and immateriil loss)

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