Change of Claim

Herzeine Inlandsch Reglement ("HIR") and Reglement Buiten Govesten ("RBg") do not regulate the provisions of changing of claim. The legal basis for changing of claim is regulated under Article 127 Reglement op de Rechsvordering ("Rv").

There are some provisions on the period of time to propose a changing of claim, as follows:

1.Until main dispute is decided

This period of time is affirmed under the provision of Article 127 of Rv. Article 127 of Rv regulates that the plaintiff has the right to change or reduce the claim until the main dispute is decided. This period of time is considered giving the plaintiffs too much right and is considered as an abuse against the defendant.

 

2.Period of time of the proposal is on the first day of trial

A guide book which is issued by the Supreme Court ("MA") confirms that the time period to propose a change of claim can only be performed on the first day of trial. Further, the parties are also required to be present at the time when the change of claim is proposed. Period of time which is regulated under MA’s guidebook is considered too restrictive since it only gives a chance to propose a change of claim on the first day of trial.

3.Until the stage of replik-duplik

The period of time to propose a changing of claim, which is considered to be appropriate and adequate to enforce the balance of the interests of the parties, is until the stages of replik-duplik. In practice, the courts tend to apply this period of time for changing of claims, for example, the Supreme Court Decision No.546 K/Sep/1970.

Article 127 of Rv does not regulate the formal requirement of proposing the change of claim. But the formal requirement of change of claim is contained in the guidebook which is issued by MA. Formal requirements of change of claim are:

1. Change of claim is proposed in the first trial which is attended by the defendant.

Change of claim is proposed in the first day of trial and is attended by the parties. This requirement is to protect the interests of the defendant to defend himself.

2. Giving a right to the defendant to respond

MA’s guidebook regulates that the change of claim is notified to the defendant and will give right to the defendant to respond and defend his interests.

3. Not hinder the trial process

Change of claim may be performed by the plaintiff' as long as it does not hinder the trial process.

Under Article 127 of Rv, limitation for the plaintiff to change or reduce the claim is that the change of claim cannot change or add the main claim. Prof.Subekti argues that the main claim is the material event of the claim. Thus, the change of claim which is justified by the law is the change which "does not change and deviate from the material events." Generally, a main claim means the main matter of claim or the material event of the claim. Therefore, the general limitation of changes or reductions of claim may not cause the change of claim materially.

Court decision provide some limitations on the change of claim. The limitations are among others the change of claim cannot change the main dispute, the change of claim is not principle, change of date which is not considered damaging the interests of the defendant, it does not change the posita, and the reduction of claim does not harm the defendant.

Maria Amanda

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