Authored By: Arther Efflin Sugiarto
University of Christian Indonesia
INTRODUCTION
“An agreement is an act by which one or more persons bind themselves to one or more other persons.”
This is the text of Article 1313 of the Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata or KUHPerdata), which to this day remains the foundational definition of an agreement in Indonesian law. Enacted in 1848 through the Burgerlijk Wetboek (BW) as part of the colonial legacy, this definition has survived for more than 170 years without any significant revision. Yet it suffers from a fundamental flaw: it describes only a unilateral act, one party binding itself, without addressing the essence of an agreement as a reciprocal relationship born from the mutual consent of the parties involved.
This deficiency extends beyond academic discourse. It carries tangible implications for modern contract law practice, particularly within the rapidly evolving digital economy. A critical question thus emerges: can this outdated and lopsided definition still be reconciled with the ideals of justice and legal certainty mandated by the Indonesian Constitution?
Agreements represent the most fundamental legal institution in social and national life. Nearly every aspect of human interaction: from routine sale and purchase transactions, lease agreements, and loans, to complex investment contracts and digital economic transactions, rests upon the foundation of an agreement. As a state based on the rule of law (rechtsstaat), as affirmed in Article 1 paragraph (3) of the 1945 Constitution, Indonesia bears the obligation to provide a clear, fair, and certain legal framework for every legal relationship among its citizens. However, has Article 1313 of the Civil Code actually guaranteed all of that all this time?
THE DEFINITION OF AGREEMENT UNDER ARTICLE 1313 AND ITS HISTORICAL CONTEXT
In the digital realm, electronic contracts manifest in two primary forms: the clickwrap agreement and the browsewrap agreement. A clickwrap agreement requires users to actively click a checkbox typically labelled as “I agree” before gaining access to a service. This process generates an explicit act that demonstrates the user’s consent.[1] By contrast, a browsewrap agreement merely posts a hyperlink to the terms of service somewhere on a website page. Users are deemed to have consented to the terms solely by accessing or using the site without any explicit action such as clicking an approval button, and without any evidence that the user has read, or even become aware of, the existence of the terms.[2]
The fundamental distinction lies in the presence or absence of a clear “manifestation of intent” from the user. Clickwrap presents an active act signifying consent, whereas browsewrap relies on the assumption that mere site usage automatically translates into acceptance of terms that the user may never have perused or comprehended. From the perspective of contract law, browsewrap encounters a serious difficulty: it fails to satisfy the element of consent, which constitutes the very essence of any agreement. Article 1320 of the Indonesian Civil Code establishes that the validity requirements for an agreement include consent of the parties who bind themselves. In browsewrap, no clear offer exists, and no explicit acceptance occurs. The user never declares “I agree”, they merely access the website.[3] Furthermore, browsewrap contravenes the principle of consensualism, which lies at the heart of contract law, affirming that agreements emerge from the mutual consent of the parties.
Upon closer examination, browsewrap should not be classified as a valid agreement. First, a valid agreement requires genuine and conscious consent; parties must mutually comprehend the essence of their commitment and the objective they seek to achieve. In browsewrap, users do not consciously bind themselves, they merely navigate a website. Second, an agreement constitutes a reciprocal relationship, not a unilateral one. Third, an agreement demands a clear purpose.[4] Browsewrap conceptually fails to qualify as an agreement because it lacks these essential elements.
Herein lies the connection to Article 1313. Why has the problematic practice of browsewrap emerged and persisted? The answer resides in the definition itself, a definition that is conceptually deficient. Article 1313 depicts only a unilateral act without any reciprocal element, makes no mention of consent or consensus, fails to specify the purpose of an agreement, and employs the term “act” (perbuatan) which is overly broad.[5]
To fully comprehend what constitutes an ideal agreement, Abdulkadir Muhammad (2012) formulates six elements that must be present in every agreement: there must be parties or subjects to the agreement; there must be consent between the parties; there must be a purpose to be achieved; there must be a prestation to be performed; there must be a specific form, whether oral or written; and there must be specific terms as the content of the agreement.[6] The essence of these six elements is that an agreement must emerge from conscious consent, possess a clear purpose, and establish a balanced, reciprocal relationship.
Article 1313 of the Indonesian Civil Code has become obsolete and fundamentally flawed because it depicts only a unilateral act without reflecting the essence of an agreement as a reciprocal relationship born from conscious consent and possessing a clear purpose. This definitional flaw is demonstrably evident in the practice of browsewrap, which relies on tacit consent without explicit user action, a legal construct that fails to satisfy the element of consent as mandated by the principle of consensualism and Article 1320. Browsewrap therefore cannot be considered a valid agreement, and its existence proves the inadequacy of Article 1313.
Article 1313 of the Indonesian Civil Code reads: “An agreement is an act by which one or more persons bind themselves to one or more other persons.” This provision forms part of Book III of the Civil Code concerning Obligations (Perikatan), inherited from the Dutch Burgerlijk Wetboek (BW) and introduced to Indonesia in 1848 under the principle of concordance. To this day, the article has never undergone any meaningful textual revision, despite sustained scholarly criticism.[7]
Historically, this definition emerged in the nineteenth century, when legal transactions remained predominantly simple and face-to-face in nature. The concept of agreement during that period bore a formalistic character and had yet to anticipate the complexity of modern legal relationships, including electronic transactions, standard form contracts, and agreements involving non-human legal subjects such as corporations or artificial intelligence. The inability of Article 1313 to accommodate these developments provides compelling evidence that the provision has become misaligned with contemporary legal needs.[8]
III. JURIDICAL WEAKNESSES OF ARTICLE 1313
Several scholars have highlighted the deficiencies of Article 1313. Subekti (1990) criticised the provision as excessively narrow and failing to reflect the essence of an agreement as a reciprocal relationship.[9] Yahya Harahap (1986) emphasised that this definition depicts only a unilateral agreement (eenzijdige overeenkomst), whereas the true nature of an agreement lies in its reciprocal character (wederkerige overeenkomst), creating rights and obligations for both parties.[10] Based on that statement, the term “act” (perbuatan) in Article 1313 is too broad, encompassing acts without consensus such as zaakwaarneming (management of another’s affairs) and onrechtmatige daad (unlawful act). This label is such a definition of “imperfect” for failing entirely to mention the element of consent (consensus). These ideas declared that Article 1313 is incomplete because it refers only to unilateral acts and “excessively broad” because the term “act” encompasses voluntary representation and unlawful acts.
Abdulkadir Muhammad states that agreements need to follow six elements: the existence of parties, encompass consent, purpose, prestation, form, and specific terms. When measured against six elements of agreement from Abdulkadir’s, Article 1313 satisfies only one: the existence of parties. The provision fails entirely to encompass consent, purpose, prestation, form, and specific terms. This failure to address essential elements renders Article 1313 an incomplete definition, unreliable as a foundation for fair and certain contractual relations. An agreement, at its essence, is a legal relationship in which parties mutually comprehend the basis of their commitment and recognise the objective they pursue two dimensions entirely absent from Article 1313.
COMPARATIVE PERSPECTIVES AND CONSTITUTIONAL ANALYSIS
Comparative Perspectives from Foreign Legal Systems
Criticism of a unilateral and incomplete definition of agreement is not confined to Indonesia. In the Netherlands, the country of origin for the Indonesian Civil Code, the analogous definition has undergone reform through the Nieuw Burgerlijk Wetboek (NBW). Article 6:213 of the NBW defines an agreement as “een meerzijdige rechtshandeling” a multilateral legal act. This definition explicitly employs the term “multilateral” to emphasise that the essence of an agreement is a reciprocal act involving more than one party, rather than a unilateral act. This reform directly corrects the deficiency of the old Civil Code definition, which was merely “eenzijdige” (unilateral) and failed to encompass essential elements such as consent, purpose, and prestation.
From the perspective of European legal history, Giovanni Chiodi (2020) demonstrates that the notion of a binding unilateral promise without acceptance has long been contested within the ius commune tradition. Hugo Grotius maintained that a simple unilateral promise, until accepted, does not bind under natural law, and that acceptance constitutes an essential prerequisite for any transfer of rights and obligations to become enforceable.[11] Martin Hogg (2011) of the University of Edinburgh similarly affirms that although the promise played a significant role in the history of European contract law, its primacy has been superseded by the agreement model requiring consensus and a clear purpose.[12]
It means, the reforms in the Netherlands and developments within the European legal tradition demonstrate that a definition of agreement that is merely unilateral and fails to encompass consent, purpose, and prestation can no longer be sustained in modern legal systems. Indonesia, as a country that inherited its Civil Code from the Netherlands, should follow the reformative path already undertaken by the origin country of its legal system.
Constitutional Analysis: Social Justice and Legal Certainty
The deficiency of Article 1313 extends beyond technical drafting, it contradicts the fundamental values enshrined in the Constitution. The fourth paragraph of the Preamble to the 1945 Constitution articulates the national aspiration to realise social justice for all Indonesians. An ideal definition of agreement must reflect this value of justice by acknowledging that an agreement constitutes a reciprocal and balanced relationship, born from conscious consent and oriented toward a clear purpose. Article 1313, which merely describes a unilateral act without consent or purpose, represents an antithesis to social justice because it risks creating inequitable relationships that disadvantage one party from the outset.
Article 28D paragraph (1) of the 1945 Constitution affirms every person’s right to recognition, guarantee, protection, and fair legal certainty, as well as equal treatment before the law. Article 1313, being vague and failing to incorporate essential elements of agreement, becomes a source of uncertainty and injustice. The browsewrap practice, which emerges from this definitional loophole, exemplifies how Article 1313 undermines the constitutional rights of citizens to fair legal certainty. When users are legally deemed bound without ever consciously consenting to the governing terms, both justice and legal certainty have been violated.
When assessed against the fundamental principles of contract law, several principles should ideally be reflected in the definition of an agreement. The principle of consensualism affirms that agreements arise from the mutual consent of the parties. The principle of balance requires that rights and obligations be equitable and fair. The principle of pacta sunt servanda holds that valid agreements bind the parties and have the force of law between them. Article 1313, which omits consent, fails to reflect balance, and provides no clarity regarding what binds the parties, plainly contradicts all three principles.
Urgency of Reform and Recommendations
Based on the foregoing analysis, the reformulation of Article 1313 constitutes an inescapable necessity. An ideal reform should adopt a definition of agreement that encompasses all essential elements: conscious consent, clear purpose, prestation to be performed, specific form as required by law, and terms governing the rights and obligations of the parties.
The recommended new formulation is as follows:
“An agreement is a legal act performed by two or more parties, based on free and conscious consent, to create a reciprocal legal relationship with a specific purpose and prestation that does not conflict with public order, morality, or applicable laws and regulations.”
This definition reflects the principles of consensualism, balance, and legal certainty that have long served as the foundation of contract law, while simultaneously accommodating the developments of modern transactions, including electronic contracts.[13]
CONCLUSION
Article 1313 of the Indonesian Civil Code, which defines an agreement as “An act by which one or more persons bind themselves to one or more other persons” contains fundamental deficiencies. This definition depicts only a unilateral act, without mentioning consent, purpose, prestation, form, or the terms that should constitute the essence of every agreement. This deficiency extends beyond academic discourse, bearing tangible consequences for modern contract law practice, as evidenced by the browsewrap agreement, which relies on tacit consent without explicit user action, a legal construct that fundamentally fails to satisfy the element of valid consent.
This article has demonstrated that the deficiency of Article 1313 contradicts the spirit of social justice and the right to fair legal certainty as mandated by the 1945 Constitution. Comparative analysis with the reforms in the Netherlands through the Nieuw Burgerlijk Wetboek and developments within the European legal tradition reinforce that a definition of agreement recognising multilateral character and encompassing essential elements has become an imperative in modern legal systems.
The reformulation of Article 1313 therefore constitutes a constitutional necessity for realising fair legal certainty in Indonesia. A new formulation incorporating consent, purpose, prestation, form, and the terms of agreement will provide a stronger foundation for national contract law while simultaneously addressing the challenges of transactions in the digital era. The time has come for Indonesia to move beyond obsolete colonial definitions and construct a legal framework for agreements that aligns with the values of social justice and the needs of modern society.
REFERENCE(S):
TABLE OF CASES
No cases cited.
TABLE OF LEGISLATION
Kitab Undang-Undang Hukum Perdata (KUHPerdata) [Indonesian Civil Code].
Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 [The 1945 Constitution of the Republic of Indonesia].
Nieuw Burgerlijk Wetboek (NBW) Buku 6 Pasal 6:213 [Dutch Civil Code Book 6 Article 6:213].
BIBLIOGRAPHY
Abdulkadir Muhammad, Hukum Perikatan (Alumni, Bandung 2012).
Mariam Darus Badrulzaman, Kompilasi Hukum Perikatan (Citra Aditya Bakti, Bandung 2001).
Purwahid Patrik, Dasar-Dasar Hukum Perikatan (Mandar Maju, Bandung 1994).
R Setiawan, Pokok-Pokok Hukum Perikatan (Bina Cipta, Bandung 1994).
RH Hoppenbrouwers, Contract Law in the Netherlands (Kluwer Law International 2019).
Subekti, Hukum Perjanjian (Intermasa, Jakarta 1987).
Wirjono Prodjodikoro, Asas-Asas Hukum Perjanjian (Mandar Maju, Bandung 2000).
Yahya Harahap, Segi-Segi Hukum Perjanjian (Alumni, Bandung 1986).
Giovanni Chiodi, ‘The Origins of the General Concept of Contract’ (2020) Journal of the History of European Law (JHL 02).
James Gibson, ‘The Evolution of the Clickwrap Agreement’ (2020) 45 Journal of Corporation Law 321.
Jimly Asshiddiqie, Hukum Tata Negara dan Pilar-Pilar Demokrasi (Sinar Grafika, Jakarta 2005).
Mark A Lemley, ‘Terms of Use’ (2006) 91 Minnesota Law Review 459.
Martin Hogg, Promises and Contract Law: Comparative Perspectives (Cambridge University Press 2011).
Martin Hogg, ‘Unilateral Promises in Scots Law’ (2009) 13 Edinburgh Law Review 345.
Nancy S Kim, Wrap Contracts: Foundations and Ramifications (Oxford University Press 2013).
Robert A Hillman and Jeffrey J Rachlinski, ‘Standard-Form Contracting in the Electronic Age’ (2002) 77 New York University Law Review 429.
[1] See Mark A Lemley, ‘Terms of Use’ (2006) 91 Minnesota Law Review 459; Nancy S Kim, Wrap Contracts: Foundations and Ramifications (Oxford University Press 2013) 45-67.
[2] Robert A Hillman & Jeffrey J Rachlinski, ‘Standard-Form Contracting in the Electronic Age’ (2002) 77 New York University Law Review 429, 450; James Gibson, ‘The Evolution of the Clickwrap Agreement’ (2020) 45 Journal of Corporation Law 321, 335.
[3] Article 1320 of the Indonesian Civil Code; Subekti, Hukum Perjanjian (Intermasa, Jakarta 1987) 23-25.
[4] Yahya Harahap, Segi-Segi Hukum Perjanjian (Alumni, Bandung 1986) 45; Restatement (Second) of Contracts § 19 (1981).
[5] Purwahid Patrik, Dasar-Dasar Hukum Perikatan (Mandar Maju, Bandung 1994) 67-70; R Setiawan, Pokok-Pokok Hukum Perikatan (Bina Cipta, Bandung 1994) 49.
[6] Abdulkadir Muhammad, Hukum Perikatan (Alumni, Bandung 2012) 78-82.
[7] Mariam Darus Badrulzaman, Kompilasi Hukum Perikatan (Citra Aditya Bakti, Bandung 2001) 89-92.
[8] Ibid 90-91.
[9] Subekti, Hukum Perjanjian (Intermasa, Jakarta 1987) 10-12.
[10] Yahya Harahap, Segi-Segi Hukum Perjanjian (Alumni, Bandung 1986) 30-33.
[11] Giovanni Chiodi, ‘The Origins of the General Concept of Contract’ (2020) Journal of the History of European Law (JHL 02) 15-20; Hugo Grotius, De Jure Belli Ac Pacis (1625) Lib II Cap XI.
[12] Martin Hogg, Promises and Contract Law: Comparative Perspectives (Cambridge University Press 2011) 56-62; Martin Hogg, ‘Unilateral Promises in Scots Law’ (2009) 13 Edinburgh Law Review 345.
[13] Jimly Asshiddiqie, Hukum Tata Negara dan Pilar-Pilar Demokrasi (Sinar Grafika, Jakarta 2005) 123-125.
