IMPLEMENTASI ASAS PROPOSIONALITAS DALAM PEMBENTT]KAN DA}[ PELAKSANAAN KONTRAK KOMERSIAL

Abstract

This research aim to analyze the implementation of the principle of proportionality in all phases of the contract, either at the stage of pre-contractual, contract formation and execution of the contract, and when there is a contract dispute, when the position of the parties to a commercial contract can not be balanced. This research is normative and doctrinal legal research, legal materials include primary and secondary gathering through techniques of study in library. Data processing is done with qualitative methods of selecting, classifying and logically systematized data and legal materials of the same symtomps. Contract as an instrument�s exchange of right and responsibility is expected to be going well, fair and proportionate in accordance to the agreement of the parties. Especially, in commercial contracts, both at the pre-contractual stage, contract formation, implementation and when the contract could not achieve the purposes or the dispute would be happened. Therefore, the implementation of the principle of proportionality in commercial contracts has important role in the existence of fair fulfillment on right and responsibility of the parties of contracts. This study will analyze two arguments in the existence of unequal position of the parties. First, proportionally principle can be used in the contract even though the position of the parties is not equal as long as both of the party keep on going in the fairness fulfillment on the right and responsibility. Second, the stronger party will dismissed the proportionality principle in the flawed will of misappropriation situation toward the weaker parties of the contract. Keywords: Principle of Proportionality, Commercial Contracts