Recognition of Relative Force Majeure in Indonesian Court’s Decision

In recent years, civil courts in Indonesia have tried to implement broader interpretation of force majeure. The case law of the civil court has provided recognition of the unforeseen circumstances in the sense of relative force majeure. This can be seen on District Court decision No. 37/Pdt.G / 2015 / PN.Bla which considers relative force majeure on its decision.[1] The decision state Relative Force Majeure is a condition that causes the debtor difficult to perform his obligation. The execution of such obligation must be done by giving unbalanced sacrifice or beyond human capabilities or the possibility of a great economic loss. The court then gives example, a farmer borrowed money through credit from a traditional bank, with a promise to be paid when harvest season. But before the harvest, his field was attacked by a caterpillar. Thus, at that time he can not afford the credit to the bank, but he will pay in the upcoming harvest season. The court states that it is proper that the rights and obligations concerned are deemed to have disappeared.

Another recent case, the other court also gives a broader interpretation of force majeure. It is a case related to the regulatory change that influences the performance of an agreement. There is a barrier to carrying out the agreement because of the juridical impossibility (Jurisdische onmogelijkheid). The regulatory change is included in the force majeure that can be used as a basis for a defence of the debtor even though the obligation is still possible to be executed.  In this force majeure event, things that appear to be an obstacle in the implementation of achievement is unexpected and beyond the fault of the parties, therefore juridical liability for the implementation of the obligation is released.[2]

Besides, Supreme court has also held that a relative force majeure is exist if performance by one party has become excessively onerous, and radically changing the original contractual equilibrium. The breakthrough decision of Indonesian Supreme Court No 1787K/PDT/2005 related to an agreement to construct, to operate and to manage Gas Tower.[3] Initially, this agreement was going well, but when in 1997 the agreement stalled because of economic crisis happened to Indonesia. The prices were soaring upward uncontrollable, so that the defendant had difficulty performing its obligation.

According to the supreme court decision, the supreme court judges strengthen the district court decision that the circumstances (monetary crisis) are generally accepted, and it may be the reason that could hamper the construction of Pertamina Gas Tower in particular. The judges were aware that the monetary crisis that befell Indonesia is not even the force Majeure as defined in the law (Indonesian Civil Code) but the judges insist that economic changes in the form of world economic recession can be classified as force majeure event. Therefore, economic condition affecting the country and beyond the will of the defendant which result to the rising prices of building materials has given serious imbalance which lead to an excesive onerousness to perform obligation of contracting party. However, then I may argue that instead of the parties affected by change of circumstances terminate the agreement, it is favourable to renegotiate the contract to the other contracting parties at the first place.

Note that Indonesia does not embrace a system of judicial precedent. As consequences, based on many kinds of literature the judges have quite extensive discretion in settling a dispute without being bound by previous judgments. Therefore, even though there was a precedent, it is still uncertain that the other judges will decide in the same manner.


[1] District Court decision No. 37/Pdt.G / 2015 / PN.Bla between Lasmidi as a claimant and PD. BPR BKK Blora as a defendant.

[2] Distric Court Decision No. 04 / Pdt.G / 2004 / PN.Btg between CV. Usaha Putra Indonesia and Batang Local Government

[3] The Indonesian Supreme Court Decision No 1787K/PDT/2005 between PT. Pertamina as a claimant and PT. Wahana Seno Utama as a defendant.


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