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In the civil procedural law practice, an unlawful act claim is often submitted together with the arguments related to breach of contract. Therefore, it needs to be explained that a claim filed based on an unlawful act and claim filed based on breach of contract is based on two different legal rules or provisions. A breach of contract claim is filed based on a broken promise or conflict regarding the contents of the agreement, and this requires the party who broke the agreement to take responsibility.

According to Prof. Subekti, breach of contract happens if one of the parties in an agreement: does not carry out what was promised; carry out what was promised but not as it should; carry out what was promised but was too late to do so; and does something that cannot be done according to the agreement. Whereas J. Satrio believes that breach of contract is a condition in which a debtor does not fulfill his/her promises or does not fulfill a promise as he/she should and such actions can be blamed on him/her.

Breach of Contract is regulated in Article 1243 of the Indonesian Civil Code, which states:

Compensation for costs, damages, and interests for the breach of an obligation only becomes obligatory, if the debtor, after having been declared to be in default, remains in default, or in case of obligations where he must give or produce something, is only given after the lapse of a period of time.

Whereas the unlawful act claim is generally filed based on Article 1365 of the Indonesian Civil Code, which states:

“Every unlawful act that causes damage to another person obliges the wrongdoer to compensate such damage.”

Based on these provisions, the elements of an unlawful act are: there is an action (against the law/onrechtmatig); there is loss (schadel), there must be causality between the action and the loss (causaliteitverband); and the loss is due to a fault (schuld). Indonesian Supreme Court Decision No. 2831 K/Pdt/1996 dated 7 July 1996, stipulates that the Plaintiff must prove the existence of the elements of the unlawful act according to the provisions of Article 1365 of the Indonesian Civil Code, namely:

1. An Unlawful Act – the Defendant’s unlawful action exists;

Indonesian judicial practice applies the Hoge Raad standard judgment (standardarrest) dated 31 January 1919 regarding the meaning of unlawful act (“Onrechtmatigedaad”) states that:

“The meaning of Onrechtmatige daad also includes actions that violate a person’s rights or are contrary to his/her legal obligations or contrary to decency or propriety in the community both to people and other objects.”

(Chidir Ali, SH., Legal Entity – Badan Hukum, page 202, Alumni, Bandung, 1999).

2. Loss – there is a loss suffered by the Plaintiff;

Prof. Dr. Wirjono Prodjodikoro, S.H. explains that:

“Losses must now be taken in the broadest sense, not only concerning someone’s property but also regarding other interests of a human being, namely the body, soul, and honor of a person.”

(Prof. Dr. Wirjono Prodjodikoro, SH., Unlawful Act: From Civil Law Perspective – Perbuatan Melanggar Hukum: Dipandang Dari Sudut Hukum Perdata, page 16, CV. Mandar Maju, Bandung, 2000);

3. Fault or Negligence – there is fault or negligence on the Defendant’s part;

The element of fault, according to J. Satrio:

“…… ‘fault/schuld’ here is something despicable, which can be blamed, which is related to behavior and behavioral consequences, i.e., losses, behaviors, and losses which can be blamed and therefore can be accounted for.”

(R. Setiawan, SH., Principle of Contract Law – Pokok-Pokok Hukum Perikatan, page 84, Binacipta, Bandung, Fifth Edition, 1994).

4. Causality between action and loss – there is causality or causal relationship between the Plaintiff’s loss and the Defendant’s act/fault

The following will present the opinions of legal experts in explaining the difference between breach of contract/default and unlawful act/tort.

Former Chief Justice, M. Yahya Harahap, in his book “Civil Procedure Law – Hukum Acara Perdata” Sinar Grafika, Jakarta, first edition, April 2005, pages 455 and 456, among others, states:

“From the description above, from the basics of it, in terms of source, shape, and form, breach of contract and unlawful act are different. Therefore, in formulating a factual ground or argument for the lawsuit:

  • it is not permissible to mix up a breach of contract with an unlawful act in a lawsuit;
  • It is considered wrong to formulate a lawsuit with an unlawful act argument if what happens, in concrete terms is a breach of contract;or
  • it is not appropriate if a lawsuit argues with breach of contract while what objectively happened is an unlawful act.”

Furthermore, Prof. Mr. Pitlo in his book: Het verbintenissen recht naar het nerderlands bugerlijk wet boek”, 3rd printing, 1952 page 215 states:

“het is echter duidelijk, zowel uit de historie als uit de systematiek der wet, dot wanprestasie niet onder het begrip onrehctmatige daad valt.”


“it is clear, however, both from the history and from the system of the law, that default is not covered by the concept of an unlawful act.”

In line with Pitlo, legal expert Ian Fleming in his book titled “Law of Tort”, 7 ed., Law Book Co. 1987 explains that:

“Tort is an injury other than a breach of contract which the law will redress with damages.”

The opinions of the experts above were strengthened by Dr. Higgins in his book titled “Elements of Tort in Australia”, Butterworths 1978, which states:

“A tort is an act or omission which is unauthorized by law independent of either contact, trust, or legal obligations arising out of other fiduciary duties, ……”

The opinions of Ian Fleming and Dr. Higgins can be seen in the article written by Suwidya Abdullah, SH., LL.M. titled “Comparison between ‘Law of Torts’ and ‘Onrechtmatigedaad’ – Perbandingan antara ‘Law of Torts’ dan ‘Onrechtmatigedaad’” published in Varia Peradilan Magazine No. 193, October 2001 Year XVII, pages 136-141.

Hope it is useful,


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