Kesetaraan dan Keseimbangan Sebagai Perwujudan Itikad Baik Berlandaskan Pancasila

Abstract

The question what is the good faith in contract law has been the sub- ject of much debate in recent times. The background is that the exist- ence or otherwise of such a principle in contract law is one of the major divisions. Indonesia civil code accommodated this principle on Book number-III and Book number-II as consequence of legal transition based on state constitution. As the legacy of Nederland legal system, the good faith principle should be harmonizes with Indonesia fundamental ideas which for- mulated on Pancasila. These fundamental ideas created the social justice in- cluding contract relationship, in a sense to be able to shorten the gap between the strong and the weak, and gives special protection to groups who are weak in dealing with the strong one. To receive this ideal, the good faith should be able created equality and proportional among parties in contract relationship. Firstly, equality is the fact of being equal to give all information of the content of contract before consensus. This good faith called the subjective of good faith. Secondly, proportional is the contract performance based on reason- able. This good faith called the objective good faith. A complete condition of both good faiths not only gives the fair exchange but also provides justifica- tion of contractual relationship in Pancasila perspective