Misbruik Van Omstandigheden: Voidable Agreement

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• August 5, 2025

MISBRUIK VAN OMSTANDIGHEDEN: VOIDABLE AGREEMENT

One of the conditions for the validity of an agreement is the agreement of the parties. Agreement is a will that must be free from the elements of delusion, fraud and/or coercion. In addition, the agreement is also free from abuse of circumstances Misbruik Van Omstandigheden.

What is an agreement?

An agreement is a meeting of wills (consensus) between two or more parties who freely and consciously express their agreement to cause certain legal consequences in the form of an agreement (Article 1313 of the Civil Code (KUHPerdata)). Based on this article, an agreement is a legal action in which one or more people bind themselves to another or more people. Therefore, agreement or agreement is an important part or element of an agreement (Overeenkomst), which serves to create conditions in which the parties to the agreement reach a consensus of will or consensus.

The agreement itself contains 3 things:

1. 1. Achievement to deliver something (this achievement is contained in ps. 1237 KUHPer);
   2. Achievement to do something or do something (this type of achievement is contained in ps. 1239 KUHPer); and
   3. The achievement not to do or not to do something (this type of achievement is contained in Article 1239 of the Civil Code).

Theories of Agreement

There are four theories of agreement, namely:

1. 1. Statement Theory (uitingstheorie), which states that an agreement (toestemming) is reached when the offeree states his agreement to the offer.
   2. Delivery Theory (verzendtheorie), which argues that an agreement arises when the offeree sends a reply by telegram.
   3. Knowledge Theory (vermeningstheorie), which asserts that an agreement occurs when the offeree knows that his offer has been accepted, even though he has not received the acceptance letter directly.
   4. Acceptance Theory (ontvangstheorie), which assumes that an agreement is considered to be born when the bidder directly receives an answer from the receiving party.

The validity of the agreement is determined by the legal requirements of the agreement specified in Article 1320 of the Civil Code. According to Article 1320 of the Civil Code, the valid requirements of an agreement include:

1. 1. Agreement of the parties
   2. The capacity of the parties
   3. A certain thing (object of agreement)
   4. A lawful cause (the object of the agreement is not something that is prohibited)

In 1320 of the Civil Code, it contains subjective and objective requirements, the subjective requirements include the agreement of the parties and the competence of the parties. An agreement that is born from mistake, coercion, or fraud can be requested for annulment through the court. The request of the party entitled to request the cancellation (the party who is incapable or the party who does not give his agreement freely of his own free will).

Agreements Containing elements of mistake, coercion and fraud

If in the process of making an agreement there are elements of mistake (dwaling), coercion (dwang), or fraud (bedrog), then the agreement is legally defective. The defect of will mentioned by Article 1321 of the Civil Code is called the classic defect of will. In addition to the defect of will referred to in Article 1321 of the Civil Code, jurisprudential practice also recognizes a form of defect of will, namely abuse of circumstances (misbruik van omstandigheiden or undue influence).

Defect of Will:

1. 1. Mistake or mistake (dwaling);
   2. Duress (dwang or bedreiging);
   3. Fraud (bedrog),

Error (dwaling, mistake) occurs when a person who intends to make an agreement has a wrong understanding of the identity of the other party (error in persona) or of the nature of the goods that are the object of the agreement (error in substantia). This misunderstanding also covers intangible objects. If an agreement contains mistake or misunderstanding, it can be said to contain subjective defects and can be canceled.

Coercion is broadly interpreted to include all forms of threats, both verbal and real actions. However, the coercion referred to here is not absolute coercion, because if there is absolute coercion, then the agreement is invalid from the start (null and void). If a person makes an agreement under pressure or threat so that his will is not free, then the agreement can be requested for cancellation.

Fraud in an agreement is the act of lying or providing misleading information for one’s own benefit, which causes the agreement to be canceled. The difference between fraud and coercion lies in the awareness of the victim; in coercion, the victim realizes that his decision is not of his own free will, while in fraud and mistake, the victim misunderstands the information so that his will is flawed.

Agreements Containing Misbruik Van Omstandigheden

Abuse of circumstances (misbruik van omstandigheden/undue influence) is regulated in Article 3: 44 NBW / Nieuw Burgerlijk Wetboek (since January 1992) agreements can be canceled if one party to the agreement is in an emergency or forced or in a situation where the opposing party has a stronger psychological state and abuses these circumstances in making the agreement. Abuse of circumstances occurs when a person in an agreement is influenced by something that prevents him from making a judgment that is free from the other party so that he cannot make an independent decision.

In the third book of Article 44 paragraph (1) of the Nieuw Burgerlijk Wetboek (New BW) of the Netherlands, there are four conditions for the existence of abuse of circumstances, namely: 1) Special circumstances (bijzondere onstandigheden), such as emergency, dependence, carelessness, mental illness and inexperience; 2) A real thing (kenbaarheid), it is required that one of the parties knows or should know that the other party in special circumstances is moved (his heart) to close a deed of agreement; 3) Misuse (misbruik), one of the parties has executed the agreement even though he knew he should not have done so; 4) Causal relationship (causaal verband), it is important that without the abuse of the circumstances, the agreement is not closed.

Legal Remedies for Agreements with Misbruik Van Omstandigheden

Legal remedies for agreements with abuse of circumstances can be pursued through:

1. 1. Lawsuit for Cancellation of Agreement to the court due to defect of will (Article 1320 & 1321 of the Civil Code), so that the agreement is deemed never to have existed and the parties are returned to their original state.
   2. Request for Legal Protection to prevent further losses, for example requesting a delay in the implementation of the contents of the agreement.
   3. Claim for compensation for losses suffered due to unlawful acts (Article 1365 of the Civil Code).
   4. Lawsuit Requirements: It must be proven that there is a forced, dependent, or weak position that is exploited by the other party, as well as an abuse of circumstances that affect freedom of will when the agreement is made.

Conclusion:

Misbruik van Omstandigheden (abuse of circumstances) is a condition in which a person agrees to an agreement because he is in a weak, forced, or dependent situation, and the other party takes advantage of the situation for his own benefit. Agreements born from abuse of circumstances contain defects of will and can be canceled through a lawsuit to the court. The law protects aggrieved parties so that agreements are only valid if they are made on the basis of free will without coercion, deception, or exploitation of a weak situation.

Legal Basis:

Civil Code

Nieuw Burgerlijk Wetboek

Author:

Yuliana Munthe

Editor:

Muhammad Arief Ramadhan, S.H.