Kuliah Pembiayaan Perkotaan

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Kuliah Pembiayaan Perkotaan

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zaakwarneming

Agreements that are established by virtue of law stipulates under some laws, such as in Indonesian Civil Code or in other regulations.  Furthermore, agreements that established by virtue of law which caused by personal act are consists following matters:

1. Voluntarily representation/zaakwarneming
2. Non debt payment/onverschuldigde
3. Unlawful action/onrechtsmatigheidaad

Pursuant to article 1354 of Indonesian Civil Code ("ICC") zaakwarneming is defined as condition if someone voluntarily, without taking any order for such, representing other person’s affairs, with or without any knowledge of this person, subsequently he silently has bound himself to continue and to accomplish such affairs himself. He carries all obligations that he must be carried, as if he authorizes by granting of power which expressly stated.

Based on the aforementioned article we could infer that the existence of voluntarily representation can be deemed exist if such condition meets the requirements bellow:

1. Zaakwarnemer representing someone affair
2. The maintenance of the interests of other people should be done voluntarily
3. Maintenance of the other people interests shall be done by zaakwaarnemer without any order yet based on their own initiative.
4. 4.   There should be such circumstances which justify the initiative to act as zaakwaarnemer.

Most of voluntarily representations are happen due to someone absence or by any other reasons so that such of person unable to maintain his own affair. Moreover, there are two terms which being used in such matters, those terms are gestor and dominuss. Gestor can be defined as person who taking care someone else affairs, in other hand there is also dominus, dominus is a person whose business being take care by gestor. According to ICC, if gestor have taken care of dominus affair without having been assigned thereto, by law gestor have to comply with the following obligations:

1. The obligation to accomplish dominus negotii affairs, such obligation is stipulated under article 1355 of ICC which states that he is obliged to continue in charged, although the person whose interest he represents, is dead before the affairs is accomplished, so that the person’s heirs may assign the administration.
2. To manage in the manner of a proper host, such obligation is stipulated under article 1356 of ICC which states that with regard to conduct such administration, he is obliged, to fulfill his obligations as a good host. Nevertheless, the judge is authorized to mitigate the compensation of cost, damage and interests, which caused by the fault or negligence of the person representing such administer.

However, in accordance with ICC stipulation also gives dominuss the obligations to comply under article 1357 of ICC. This article stipulates that the person whose interests have been properly managed, shall be bound to fulfill any contract, which has been concluded by the manager on his behalf, and shall indemnify him in respect of all agreements concluded by him personally, and shall compensate him for all beneficial and necessary expenses.  According to this article, it could conclude that dominus has several obligations to comply such as follows:

1. Dominuss is bound to fulfill any contract which has been concluded by gestor on his behalf;
2. Indemnify of all agreements concluded by gestor;
3. Compensate gestor all beneficial and necessary expenses.

In additional, in accordance with Arrest Hoge Raad 10 December 1948, states that gestor has a right to retain, which means a right given to gestor to retain the goods belong to dominuss until dominuss repay the expenditure of gestor.