What is an Exoneration Clause and its Legitimacy in Agreement

PERTANYAAN

Does a standard agreement containing an exoneration clause become a legitimate agreement if agreed by the parties beforehand? Please also explain what is meant by an exoneration clause?

INTISARI JAWABAN

In simple terms, an exoneration clause is an exemption or limitation of a certain responsibility in an agreement. This exoneration clause is one type of standard clause in an agreement or standard contract.

So, is this exoneration clause legitimate in the eyes of the law?

Please take a look at the review below for a further explanation.

ULASAN LENGKAP

Thank you for your question.

This article is an English translation of Apa itu Klausula Eksonerasi dan Keabsahannya dalam Perjanjian, written by Dicki Nelson, S.H., M.H. and was published on May 2, 2024.

The article below is an update of the article entitled The Legitimacy of Agreements Containing an Exoneration Clause, which was written by M. Naufal Fileindi, S.H., and first published on March 26, 2014.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

What is an Exoneration Clause?

An exoneration (in Bahasa Indonesia is known as eksonerasi) or exemption (eksemsi) clause is one type of standard clause and the term is absorbed from the English language. From this word, it can be understood that the content of the relevant clause contains an exemption or exclusion of a certain responsibility.[1]

Meanwhile, what is meant by a standard agreement according to Drooglever Fotujin, the definition of a standard agreement is contracten waarvan een belangrijk deel van de inhoud wordt bepaald door een vast samenstel van contracst bedingen which means agreements in which an important part of the content is determined by a predetermined arrangement of agreement clauses.[2]

The characteristics of a standard agreement according to Mariam Darus Badrulzaman as quoted by Salim HS in the book Teori dan Teknik Penyusunan Kontrak (p. 107) are:

1. The contents are determined unilaterally by the party whose economic position is strong.
2. The community (debtor) does not participate at all in determining the contents of the agreement.
3. Driven by his needs, the debtor is forced to accept the agreement.
4. Specific form (written)
5. Prepared in bulk and collectively.

According to Paulus J. Soepratignja, a standard contract is very open to the possibility for the business actor to limit or eliminate responsibility. Such a condition is called an exoneration condition.[3]

Then, what is an exoneration clause? An exoneration clause is a condition in an agreement in which one party absolves himself of the responsibilities imposed on him by regelend recht[4] (laws and regulations).

According to Munir Fuady, an exemption clause called an exoneration clause is a clause in a contract that exempts or limits the responsibility of one of the parties in the event of default, even though according to the law, the responsibility should be imposed on him.[5]

It can also be said that an exoneration clause is an exemption or limitation of a certain responsibility in the agreement.[6]

Normatively, the definition of an exoneration clause can be found in the Explanation of Article 46 paragraph (2) of the Regulation of the FSA 22/2023, namely exoneration/exemption clauses are clauses whose contents increase the rights and/or reduce the obligations of a Financial Services Business Actor (Pelaku Usaha Jasa Keuangan/”PUJK”), or reduce the rights and/or increase the obligations of consumers.

The Legitimacy of an Agreement Containing an Exoneration Clause

So, what are the legal consequences if the standard agreement contains an exoneration clause? If you refer to the provisions of Article 18 paragraph (1) of the Consumer Protection Law, business actors in offering goods and/or services for trading purposes are prohibited from making or including standard clauses in every document and/or agreement if:

1. it stated the transfer of business actor's responsibility;
2. it stated that the business actor has the right to reject the return of goods purchased by the consumer;
3. it stated that the business actor has the right to reject the return of money paid for goods and/or services purchased by the consumer;
4. it stated the granting of power from the consumer to business actor both directly and indirectly to carry out any unilateral action in relation to the goods purchased by a consumer in installment;
5. it regulates the proving of the loss of usage of the goods or utilization of services purchased by a consumer;
6. it grants the right to the business actor to reduce the benefit of the services or deduct the wealth of the consumer that become the object of services' sale and purchase;
7. it stated the compliance of the consumer to regulations in the form of regulations that are new, additional, follow-up and/or follow-up change stipulated unilaterally by a business actor during the period that the consumer is utilizing the services they purchased;
8. it stated that the consumer grants the power to the business actor to impose mortgage, lien, or security rights on goods purchased by the consumer in installment

The prohibition stipulated in Article 18 paragraph (1) of the Consumer Protection Law is intended to place consumers in an equal position with business actors based on the principle of freedom of contract.

Therefore, are exoneration clauses prohibited? Yes, exoneration clauses in an agreement, including standardized agreements (contracts) are prohibited. This is also emphasized in Article 46 paragraph (2) of the Regulation of the FSA 22/2023 which states every PUJK is prohibited from preparing and using standard agreements containing exoneration/exemption clauses.

Based on the explanation above, it can be understood that if an agreement, including a standard agreement, contains an exoneration clause, even though it has been agreed by both parties, the agreement is not considered valid/legitimate and is null and void. This is because agreements containing standard clauses do not meet the legal requirements of the agreement.

Summarized from this article Ini 4 Syarat Sah Perjanjian dan Akibatnya Jika Tak Dipenuhi (4 Legal Requirements of an Agreement and the Consequences if Not Fulfilled), it is explained that one of the legal requirements of an agreement according to Article 1320 of the Civil Code is a lawful cause. The Civil Code does not explain further about the lawful cause. However, it regulates a cause that is prohibited if it is prohibited by law, contrary to public order, as regulated in Article 1337 of the Civil Code.

It is further explained in the same article, that a lawful cause is an objective condition of an agreement, so that if it is not fulfilled, it results in a null and void agreement.

In addition, the inclusion of an exoneration clause in an agreement is a form of violation of the principle of freedom of contract as explained in Article 18 paragraph (1) of the Consumer Protection Law. You can read more about the principle of freedom of contract in the article Asas-asas dalam Pasal 1338 KUH Perdata (Principles in Article 1338 of the Civil Code).

Enrich your legal research with the latest bilingual legal analysis, as well as a collection of regulatory translations integrated in Hukumonline Pro, learn more here.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Civil Code;
2. Law of the Republic of Indonesia Number 8 of 1999 on Consumer Protection;
3. Regulation of the Financial Services Authority Number 22 of 2023 on Consumer and Public Protection in the Financial Services Sector.

Reference:

1. Ahmad Fikri Assegaf. Penjelasan Hukum tentang Klausula Baku. Jakarta: Pusat Studi Hukum dan Kebijakan Indonesia (PSHK), 2014;
2. Salim HS. Hukum Kontrak: Teori dan Teknik Penyusunan Kontrak. Cetakan keempat belas. Jakarta: Sinar Grafika, 2019.

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[1] Ahmad Fikri Assegaf. Penjelasan Hukum tentang Klausula Baku. Jakarta: Pusat Studi Hukum dan Kebijakan Indonesia (PSHK), 2014, p. 24

[2] Ahmad Fikri Assegaf. Penjelasan Hukum tentang Klausula Baku. Jakarta: Pusat Studi Hukum dan Kebijakan Indonesia (PSHK), 2014, p. 16

[3] Ahmad Fikri Assegaf. Penjelasan Hukum tentang Klausula Baku. Jakarta: Pusat Studi Hukum dan Kebijakan Indonesia (PSHK), 2014, p. 28

[4] Ahmad Fikri Assegaf. Penjelasan Hukum tentang Klausula Baku. Jakarta: Pusat Studi Hukum dan Kebijakan Indonesia (PSHK), 2014, p. 28

[5] Ahmad Fikri Assegaf. Penjelasan Hukum tentang Klausula Baku. Jakarta: Pusat Studi Hukum dan Kebijakan Indonesia (PSHK), 2014, p. 29

[6] Ahmad Fikri Assegaf. Penjelasan Hukum tentang Klausula Baku. Jakarta: Pusat Studi Hukum dan Kebijakan Indonesia (PSHK), 2014, p. 30