ABSTRACT
There are many assumptions regarding an imbalance in the position of a construction service contract between the service user and the service provider due to the non-reflection of the principle of freedom of contract and the absence of clarity regarding the rights and obligations of the parties concerned at the time of the contract’s implementation. The objective of this study is to obtain evidence of the absence of the principle of freedom of contract as in article 1338 Civil Code in Law No. 2, year 2017 on construction services. Whereas article 47 of Law No. 2, year 2017 only explains the clauses that must exist in a construction service contract, the application of the principle of freedom of contract, which is the basis for the making of a contract, must also be reflected, not only through the content of the contract but also in the execution of the contract to determine the clauses will be agreed upon in the contract so that the position between service users and service providers is well balanced in the construction of the contracts and also at the time of execution of such contracts. The results of the study show that: (1) article 47 of Law No. 2, year 2017 concerning construction services has explained the clauses that must exist in a construction service contract. However, there needs to be an explanation of the rights and obligations of the parties at the time of contracting and the stages of how the agreement between the parties concerned in the contract can formulate the contents of these provisions in the Construction Services Act, so that article 1338 Civil Code on freedom of contract is also reflected in a contract construction service; (2) that negotiations in a contract, especially a construction service contract, not only to determine the amount of rupiah or the price and value of the contract, but there should also be negotiation on the content of the contract clause.
