Iktikad baik dalam berkontrak: studi tentang keadilan hukum dan ekonomi pada kontrak pembiayaan BTM Mentari Ngunut Tulungagung

This item is published by Universitas Islam Negeri Sunan Ampel Surabaya

Damanuri, Aji (2018) Iktikad baik dalam berkontrak: studi tentang keadilan hukum dan ekonomi pada kontrak pembiayaan BTM Mentari Ngunut Tulungagung. PhD thesis, UIN Sunan Ampel Surabaya.

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Abstract

Most of shariah financial institution research focused on contract problem. It’s true that contracts become characteristic in shariah financial institution that differ from non-syariah financial institution. But, on the other side, the various contracts offered in shariah financial institution not ensure to be a well applied contract yet. There is another factor influence a well applied contract. That factor is faith of all parties. Good faith can realize maslahah and benefit of contract. Article 1338 subsection (3) of KUHPerdata emphasizes that “Contract must be applied on good faith”. It’s mean all kinds of contract must point to realizing maslahah and benefit for all parties related to contract. This good faith principle nearly miss from researcher discussion. This research, therefore, will disclose the application of good faith principle in contract and the statement of the problems are: 1) How is the application of good faith principle in process of formulation, implementation, and finalization of financing contract at BTM Mentari in Ngunut Tulungagung?; 2) What are the implication of good faith and freedom of contract in financing contract to law and economics justice for involved parties at BTM Mentari in Ngunut Tulungagung? This research applied Islamic Good Corporate Governance (GCG) mix approach to analyze data. Islamic GCG Mix is a mix approach between Good Corporate Governance (GCG) and shariah values. The result of analysis showed the findings, i.e.: First, the most important stages of contract is forming contract. BTM Mentari in Ngunut Tulungagung offered an option of various contract for costumer and then analyzed the financing. The subjective good faith showed its domination in this stage. The rigid analysis using Simple Additive Weighting (SAW) system as Decision Supprot System (DSS) is used for minimizing default. The implementation of financing contract, however, didn’t get enough attention from BTM Mentari. That’s happened cause availability of collateral and continuity of installment payment is considered as fairness and not a big problem. Related with overcoming problematic contract, the financing contract at BTM Mentari has reflected good faith principle. Second, the contract based on good faith principle will deliver maslahah and benefit for all parties and give legal and economic justice. The theoretical implication is good faith principle can be found as far as all parties applied the values in process of forming, implementing, and finalizing contract. The more obedient all parties in performing shariah values, the higher maslahah and benefit will be gained by all parties. So, legal and economic justice as objective of contract can be realized and satisfy all parties expectation.