Rekonstruksi Reliance Interest sebagai Basis Ganti Kerugian Akibat Pembatalan Sepihak Memorandum Of Understanding pada Tahap Pra-Kontrak dalam Sistem Hukum Indonesia

Abstract

A Memorandum of Understanding (MoU) commonly structures pre-contractual negotiations; however, its unilateral termination after one party has incurred transaction-preparation costs raises questions about the categories and measurement of recoverable loss. Using normative legal research and statutory, conceptual, comparative, and case-based approaches, this article examines pre-contractual liability and develops a reliance-interest-based compensation framework. The analysis engages Fuller and Perdue’s doctrine, culpa in contrahendo, good faith, relevant provisions of the Indonesian Civil Code, and comparative insights from German and Dutch law, the 2016 UNIDROIT Principles, and the Principles of European Contract Law. It proposes a five-stage RGKRI-MoU model: identifying the stage of negotiations, assessing good faith, classifying and quantifying losses, selecting the legal basis of liability, and determining proportionate compensation. Potentially recoverable losses are analytically divided into reasonable, evidenced pre-contractual expenditures and proven alternative opportunities foregone. The model remains a normative proposal rather than an established rule of Indonesian positive law; implementation requires careful assessment of the MoU’s binding clauses, fault, causation, and proof of loss.