Difference Between Default and Unlawful Act

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In the realm of civil law, there are two types of lawsuits that are often filed: default (wanprestasi) and unlawful act (perbuatan melawan hukum). Although these two types of lawsuits often get mixed up in practice, they have fundamental differences. Both default and unlawful act involve violations, but each has distinct characteristics and legal consequences. Understanding the difference between the two is crucial for determining the appropriate legal steps when dealing with disputes. This article will discuss the fundamental differences between default and unlawful act, enabling readers to better understand and avoid confusion when filing lawsuits.

So, what exactly is meant by default and unlawful act?

A. DEFAULT

Before discussing default, we need to understand what performance (prestasi) entails. Article 1234 of the Civil Code states that, “An obligation is intended to provide something, to do something, or not to do something.” From this provision, it can be understood that performance can consist of: 1) provide something; 2) to do something; or 3) not to do something. Meanwhile, default refers to the act of not fulfilling a performance.

Default is regulated in Article 1243 of the Civil Code, which stipulates that, ” 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.” Based on this provision, it can be understood that default involves at least three elements: 1) the existence of an agreement; 2) presence of a party who breaches or violates the agreement; and 3) being declared in default but still failing to fulfill the terms of the agreement.

According to Prof. Subekti, a debtor can be declared in default if[1]:

Failing to perform what was agreed or not fulfilling the agreement;
Performing what was promised, but not as agreed;
Performing what was promised but late;
Performing something that according to the agreement should not be done.

Thus, in simple terms, default is a legal event that arises from the non-performance of an agreement or the breach of a promise by one party to the agreement that has been agreed upon by both parties.

Examples of Default Cases

An agreement has been reached between A (creditor) and B (debtor) to enter into a loan agreement signed by both parties on 13 August 2023. According to the agreement, A provides a loan of Rp200,000,000 (two hundred million Indonesian Rupiah) to B, who is obligated to repay the money in full within 60 (sixty) working days from the signing of the loan agreement. However, after the agreed period has passed, B failed to repay the money. Then, A decided to send a legal notice(somasi) to B to immediately fulfil their obligation, but B did not heed the notice from A. Therefore, in this case, A can file a lawsuit for breach of contract against B.

B. UNLAWFUL ACTS

According to Article 1365 of the Civil Code, an unlawful act is any act that violates the law and causes harm to others, obliging the wrongdoer to compensate for the damages.

Then, what acts can be categorized as unlawful acts[2]?

Acts contrary to the legal obligations of the perpetrator;
Acts contrary to the subjective rights of others;
Acts contrary to morality; and
Acts contrary to the principles of appropriateness, diligence, and caution.

What are the elements of unlawful acts?

The existence of unlawful acts;
The presence of fault or wrongdoing;
The existence of causal link between actions and losses;
There is a loss.

Example Case of Unlawful Acts

A lives next to B. One day, A renovates his house by raising the floor level. It turns out that this renovation action causes several defects in B’s house. Due to A’s actions, A has committed a unlawful act, and B is entitled to claim material compensation for the damage to his house from A.

Furthermore, what are the differences between breach of contract and unlawful acts? Here are some of the differences.

Default	Unlawful Acts
Arises from the non-performance of an agreement.	Arising from the consequences of acts that violate regulations or violate the law
In filing a lawsuit, the plaintiff only needs to prove the existence of the breached agreement.	In filing a lawsuit, the plaintiff must prove that all elements of the Unlawful Act are fulfilled
Must be preceded by a legal notice to the party who violates the agreement.	Does not require a legal notice.
Unable to file a claim for a restitution to the original condition (restitutio in integrum)	Can file a claim for restitution in its original condition (restitutio in integrum)

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Referensi:

[1] R.Subekti, Hukum Perjanjian, Intermasa, Jakarta, Cetakan ke-14, 1992

[2] Rosa Agustina. Perbuatan Melawan Hukum. Depok: Penerbit Pasca Sarjana FH Universitas Indonesia, 2003