Keabsahan Kesepakatan atas Persetujuan Awal terhadap Perubahan Biaya Administrasi secara Sepihak dalam Syarat dan Ketentuan Shopee dengan Pedagang Ditinjau dalam Perspektif KUHPerdata

Abstract

Merchants approve the terms and conditions set by the marketplace operator through a click-wrap agreement mechanism. A problem arises when this initial approval covers changes to administrative fees that are determined unilaterally at a later date, while the amount of the fee that will apply is not yet known when the approval is given. This study aims to analyze the validity of the initial approval clause on unilateral fee changes in the Shopee Terms and Conditions from the standpoint of the element of consent under Article 1320 point 1 in conjunction with Article 1321 of the Indonesian Civil Code (KUHPerdata). The study uses normative legal research with statutory and conceptual approaches, testing the clause against the provisions on mistake, duress and fraud as regulated in Article 1322 to Article 1328 of the Civil Code. The results show that initial approval through a clickwrap mechanism is a form of declaration of intent, but its validity still needs to be examined under the provisions on consent in contract law. Based on a normative analysis of the clause examined, there is not yet sufficient basis to state that the elements of duress and fraud are fulfilled. However, the assessment of mistake and duress in concrete circumstances requires further proof of the condition of the merchant when giving approval. The assessment of the validity of the clause must be based on the fulfillment of the element of consent under the Civil Code and not merely on the existence of electronic approval.