IMPLEMENTASI MABDA’ HURRIYYAH AT-TA’ȂQUD DALAM LEMBAGA KEUANGAN BERBASIS SYARI’AH (KAJIAN ANALITIS TERHADAP KONTRAK BAKU (STANDARD CONTRACT))

Abstract

Fakultas Hukum Universitas Muhammadiyah Malang

ABSTRACT

Mabda 'Hurriyyah At-Ta'âqud or in the KUH referred to as the principle of freedom of contract, stipulated in Article 1338 which states that "All agreements are legally valid as the laws for him." This principle implies that every person can make a covenant (agreement) of any kind without being tied to the names that have been specified in the legislation and include any clause in the contract are made in accordance with its interests as far as wealth does not result in eating a fellow with the road vanity may harm the other party. In society (modern), the implementation of this principle is slightly shifted its essence if it is related to the phenomenon of contract / agreement standard (‘aqd al-iz'an) that can be found in financial institutions based on Shariah. On one side of standard contract gives the parties that would ease the complexity of transactions made klausu-clause agreement that not everyone can master it. But on the other side of the standard contract coercion attitudes often lead to one party, where such party (creditors) have no power to resist. So that the edges there is only one decision that must be taken that is a take it or leave it. Of course it is contrary to the purpose of the contract (maudhu 'al-aqd) because of a contract that has been made should not be burdensome either party. For this reason this paper is made to provide alternative solutions to the existence of standard contract (‘aqd al-iz'an) can fully provide convenience, especially for the parties to a transaction with Shariah and maslahah for ummah in general.

Kata-kata Kunci:

Implementasi, Mabda’ Hurriyyah at-Ta’âqud, Lembaga Keuangan, Syari’ah