Rabu, 24 Februari 2010

Drafting and Contract Analysis (Version English)

Thank you I say to the Advocate, Legal Officer, who has been loyal and attention to blog authors. That related to the desire of many people who give advice to the author by e-mail writers, begging the theme "Design and Analysis of Contract" is made in English version, the author tried to publish this theme with english version.

Author: Agus.Permana, SH
(Advocates in FH LKBH Trisakti & Advocate on Hadisusilodiningrat)

1. Definition of terms and Principles Business Contracts
A contract is basically a written document containing the desires of the entrepreneur to achieve the objectives of the commercial and how the party that made her feel disadvantaged, protected and limited responsibility in the achievement of a goal (Prof. Erman Rajagukguk, SH, LLM. PhD)

In developing a business contract, the first thing to be remembered by the authors of business contracts is how to understand the substance and nsecara absolute komerial desire of his party, which in terms of the contract required to consider drafting elements of a payment, compensation, taxation and ways of technology transfer.

This is above applies in the case of relationships in international relations in which the transaction must also be added to the regulation or legislation nperaturan country where the contract was made.

Basic Principles.
That the principles of basic principles that must be considered in drafting the contract and should be a concern to the parties that make are:
1. The principle of freedom of contract (Article 1338 KUHPer)
2. Principle Offer and Acceptance
3. Good faith by the Parties
4. The use of the term
5. Transition Risk
6. Indemnity
7. Choice of Law / Choice of Law
8. Settlement

As is known in Indonesia kinds / Forms of a business contract, namely:
1. Sell-Sell Agreement
2. Hire Rental Agreement
3. Agency Agreement
4. Distributor Agreement
5. Joint Venture Agreement
6. Franchise Agreement
7. Assistance Agreement techniques (Assistant Tecknical Agreement)
8. Brand License Agreement

In this writing, the author will try to share experiences on the Stages of the Development Contract:
1. Understanding and in-depth analysis on the commercial aspects related to the later contract problems that we make
2. Pemahama business contract can be arranged if the problem is the basic formulation of these contracts are not yet understood.

What should you prepare and do?
a. For Stage Preparation: you should know clearly what the parties in the field working together
b. Is the desired business is open to foreign investment
c. Does the nature of business fields open to foreign investment, which must be investigated in advance by both parties
d. Soon to be confirmed back to your prospective cooperation partners mentioned above if it has been in accordance with what is expected.

CHARTS / ANATOMY OF A CONTRACT
That almost all business contracts both local and international consists of the elements the same, namely:
1. Opening Section
2. Contract Section
3. Concluding Part
Each contract must have the title of a contract.

author will try to elaborate on the above 3 elements:
a. Opening: at the opening there are 2 elements, namely: Komparisi, premise or Recital
-Komparisi is: Part of the contract that says the parties enter into a contract and they have the right to make such contracts
-Premise or Recital: This section will contain statements from both parties who will perform the contract

b. Agency Contract
A Contract Agency generally contains about:
1. Definition: Defini useful to avoid disputes in the interpretation of a term / terminology used in a contract
2, Substance: contains the purpose of the Parties to the contract, cont: bersia Bank provides a loan
3. Rights and Responsibilities Special: containing special obligations of the parties depends on the contract made
4. General Rights and Obligations: This section is always present in every contract, cont: The Parties shall implement this agreement in good
5. Representations and Warranties: is a basic use of a party to make achievements.
6. Alternative statement: cont
a. State of-state companies concerned
b. Hal and Finance
c. Tax Liability
d. All material insured
e. Maintaining company dna Implement determined in accordance with the
government
7. Negative statements: that essentially contains prohibitions
8. Fulfillment of the conditional, cont:
a. Debtor to prepare collateral documents
b. Approval of the Commissioner or the Shareholders
c. Evidence such as licensing
d. Establishment
e. Contract-to contracts with third parties
f. Who is authorized to sign
g. Insurance policy
h. Taxation
9. Default: every contract should contain basic other parties to decide the agreement
10. Severability: With the existence of such defaults either party can decide
agreement
11. Emergency
12.Pilihan Law: Loading the law which applies to the relevant contract
in international business transactions related to the legal system of one contract
well
13. Dispute resolution
14. Language

C. Part Closing
Concluding part consists of: Substitute Clause, addresses the parties and the clause
for any changes
1. Substitute clause: a clause stipulating that the contract with the
yag relevant contract agreement before the contract is considered not
applicable.
2. Address: Address-the address if one party sends a letter or
warning
3. Clause Changes
4. Signature