THE PRINCIPLE OF CONSENSUALISM IN THE FORMATION OF DIGITAL STANDARD CONTRACTS: A STUDY ON THE MECHANISM OF CLICK-WRAP AGREEMENTS ON PAY LATER PLATFORMS IN INDONESIA

Abstrak

The growth of PayLater services in Indonesia, reaching 79.92 million contracts in 2023, has generated millions of legal events in the form of digital contract formation on a daily basis. These contracts are formed through click-wrap agreement mechanisms — consumers click an 'I Agree' button to accept terms and conditions unilaterally prepared by the platform. This study examines two primary issues: the standing of the consensualism principle in the formation of click-wrap agreements on PayLater platforms from the perspective of the Indonesian Civil Code, and whether such mechanisms substantively satisfy the element of 'consent' as a validity requirement under Article 1320 of the Civil Code. Employing a normative juridical method with conceptual and statutory approaches, this study finds that the fulfillment of the consensualism principle in PayLater click-wrap is merely formal-procedural: there is an outward sign of consent through clicking, yet without the free and informed will be required by the doctrine of consent. The mistake (dwaling) that occurs is not individual in nature but structurally systemic — reinforced by the length of Terms of Service documents, the use of dark patterns in interface design, and the informational asymmetry between platforms and consumers. This study proposes a conceptual reconstruction in the form of Five Elements of the Digital Consent Standard (LESTD) as a de lege ferenda framework, and recommends an amendment to OJK Regulation No. 22 of 2023 to operationalize this standard.