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CONSUMER PROTECTION MODEL IN THE PRACTICE OF SELLING AND PURCHASING APARTMENTS WITH PRE-PROJECT SELLING SYSTEM IN INDONESIA

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International Journal of Civil Engineering and Technology (IJCIET)
Volume 10, Issue 04, April 2019, pp. 204-212, Article ID: IJCIET_10_04_022
Available online at http://www.iaeme.com/ijciet/issues.asp?JType=IJCIET&VType=10&IType=04
ISSN Print: 0976-6308 and ISSN Online: 0976-6316
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Scopus Indexed
CONSUMER PROTECTION MODEL IN THE
PRACTICE OF SELLING AND PURCHASING
APARTMENTS WITH PRE-PROJECT SELLING
SYSTEM IN INDONESIA
Dian Cahayani*, Adi Sulistiyono and M. Hudi Asrori
Department of Law, Universitas Sebelas Maret,
Jebres, Surakarta 57126 - Indonesia
*Corresponding author
ABSTRACT
The writing of this article aims to outline a legal protection model for consumers
buying and selling apartments in Indonesia. Most of the sale and purchase of
apartments is done with a pre-project selling system, namely sales before the building
is completed. This practice is at high risk for consumers so the law must play a role in
providing protection. This article is based on legal research (normative), namely
research conducted by studying and analyzing legal materials and problems related to
research. The results of the study show that consumers are the parties most often
disadvantaged in buying and selling with a pre-project selling system. Consumers who
buy apartments have to approve the making of an income agreement known as PPJB
(Agreement on the Sale and Purchase). Whereas PPJB is an agreement document that
has weaknesses because it does not provide protection to consumers who have weak
training power. So that legal protection is needed for consumers by applying the
principles of protection based on justice by involving the government directly in
regulating and overseeing the sale and purchase of apartments with a pre-project
selling system.
Keywords: Consumer Protection, Apartments, Sale and Purchasing, Pre-project
Selling.
Cite this Article: Dian Cahayani, Adi Sulistiyono and M. Hudi Asrori, Consumer
Protection Model in the Practice of Selling and Purchasing Apartments with Pre-Project
Selling System in Indonesia, International Journal of Civil Engineering and
Technology, 10(04), 2019, pp. 204–212
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1. INTRODUCTION
Housing needs that continue to increase each year are directly proportional to the population
growth in Indonesia. However, this condition is not comparable with the availability of land.
This then led to a back log or scarcity of home ownership that touched 11.6 (eleven point six
million) units in 2016. Until 2017, Indonesia was only able to meet 60 percent of housing needs
which reached 820 thousand units to 1 million unit per year. The phenomenon of limited land
that is inversely proportional to the needs of these houses turned out to encourage the
development of vertical housing construction (apartments). The construction of apartments is
one of the efforts made to be an alternative solution to land acquisition problems that are very
difficult to get in large cities in Indonesia that are densely populated, such as those that occur
in Jakarta, Bandung, Surabaya, Semarang, Medan and or other major cities .
Developers use a series of marketing strategies to market apartments. Leung & Hui said
that developers tend to sell their properties that have not yet been completed through
preliminary agreements. [1] This system has developed in France, known as the sale of a
building that will be built (vente d’immeuble a’construire). The reason the developer is allowed
to receive money from the buyer before the building is finished is to ensure that the developer
can finance the building construction. Developers can also borrow more easily from financial
institutions, while also being able to pay building contractors with the money they get from
buyers. [2]
The pre-project selling system has been regulated in Article 42 paragraph (1) of Law
Number 20 of 2011 concerning Apartments (Apartments Law) which states that marketing by
developers before construction of apartments is completed can be carried out, while taking into
account the requirements which is determined by law. Whereas paragraph (2) requires that the
sale and purchase be contained in the Agreement on the Sale and Purchase (PPJB). This PPJB
is made as a preliminary agreement made before a notary that aims to bind the parties before
the sale and purchase deed (AJB) is made.
In practice, the pre-project selling system still creates legal problems that harm consumers
as buyers of apartments. The PPJB document is a standard agreement that is generally made
by the developer. This causes the developer position to be more dominant than the consumer.
Then, a lot of information that is misleading (misleading information) and not given openly
during the PPJB manufacturing process, for example related to land ownership status, building
specifications, what if there is a delay in delivery and violations of buyers' collective rights
carried out by developers related to parking lots, parks and other promised facilities. Since
2014-2016, for example, the Indonesian Consumers Foundation (YLKI) has received at least
440 complaints related to housing, the majority of which are due to the lack of consistency
between the offers and promises of developer promotions and the reality of development.
The losses suffered by these consumers need to be addressed as an agenda of renewal in
evaluating the development of sale and purchase of apartments using the pre-project selling
system. Legal protection against consumers is intended so that the rights that should be
obtained by consumers can be guaranteed certainty by the developer. This is to guarantee
consumer protection which has been mandated by Law Number 8 of 1999 concerning
Consumer Protection. Therefore, in-depth studies are needed regarding the pattern of buying
and selling practices with pre-project selling in Indonesia, along with a model of future
consumer protection.
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2. METHOD OF APPROACH
The method used is the legal research method (normative). Cohen & Olsen called legal research
a process of finding the law. [3] This method is carried out to find a rule of law, legal principles,
and legal doctrines to answer the legal issues at hand. [4] This research is to solve problems
that arise, and the results of research are prescriptions (prescription) of what must be done to
solve the problem. So that this study describes the problem of buying and selling apartments
with a pre-project selling system and how to protect the law against consumers of the
apartments. The approach used is a statute approach which is carried out by examining all laws
relating to the problem. This study also uses a conceptual approach that departs from the views
and doctrines that develop in law. By studying the perspectives and doctrines of law, ideas or
models, legal concepts, and legal principles that are relevant to the problem will be found. This
research comes from primary legal materials that are autorative, such as legislation relating to
apartments and legal protection for consumers; and secondary legal material in the form of all
legal publications including textbooks, legal dictionaries, legal journals, and comments on
court decisions.
3. BUYING AND SELLING APARTMENTS SYSTEM WITH PREPROJECT-SELLING
The development of housing development in Indonesia every year has increased very rapidly.
This is directly proportional to the increase in population density so that careful planning and
planning are needed along with the participation of funds and resources in the community. The
main dilemma in the implementation of housing and settlement development is the need to
provide land as the centre of its operational activities. Provision of land from day to day is
increasingly limited both in terms of quality and quantity, while development accelerates so
rapidly, especially in urban areas that are the centre of economic activity. [5]
The amount of demand for houses with land that is increasingly limited, especially in urban
areas provides business opportunities for business people in the housing sector or can be called
a developer. With limitations like this, making developers create various solutions to work
around this. One of them is by building a apartment. Apartments that have the concept of
multilevel housing are considered more practical and efficient in large cities with high
population but with very limited land.
The mechanism for selling apartments will usually be done if the building and other public
facilities have been completed. But along with developments, the mechanism of sales with the
pre-project selling system has been carried out by many developers. Pre-project selling means
marketing the sale of apartments that are done before the building is completed. This system is
believed to be able to offer convenience to the community because the requirements to obtain
it are very simple for developers. For example, only by paying a down payment of 5-10%,
people can choose the type of house they want. As for the developers themselves, this system
is said to be effective because it can find out the market response to the apartment that will be
built (test the water). So that from the beginning, the developer gained certainty about who
would be the consumer of the apartment he was building.
In Article 42 paragraph (1) of the Apartments Law, it is stated that marketing by the
developer before the construction of apartments is completed can be carried out, while taking
into account the requirements determined by law. The conditions referred to are the
construction of the apartment must have:
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1. The certainty of allotment of space, which is shown through a City Plan Certificate
(SKRK). SKRK contains information on building and environmental requirements
imposed by local governments in certain locations.
2. The certainty of land rights that are shown through a certificate of land rights.
3. The certainty of mastery of apartments. This must be explained to prospective
buyers, who are shown based on the agreement approved by the local government.
4. Licensing for the construction of apartments that are shown through Building
Construction Permits (IMB). IMB is a mandatory administrative requirement that
must be owned by the developer.
5. Guarantee for the construction of apartments from guarantor institutions which can
be in the form of bank or nonbank support letters.
This marketing concept is indeed very profitable for developers because it is relatively
helpful for developer funds. The investment burden that must be borne by the developer for the
construction of the project can be assisted by a down payment fund from the buyer. Then indent
funds from banks can be used to provide construction loans to developers. The existence of an
indent and down payment fund can also make it easier for developers because they do not need
to provide capital in the future for substantial development costs.
Based on Article 42 paragraph (2) of the Apartments Law, marketing carried out before the
construction of apartments is valid after the existence of the Sale and Purchase Agreement
(PPJB). The requirements that must be fulfilled by developers in making PPJB are: fulfilling
land ownership status, Ownership of Building Permits (IMB), availability of facilities and
public utilities, construction of at least 20% (twenty per cent), and matters promised. The
mechanism for making PPJB is still referring to the Decree of the Minister of Public Housing
of the Republic of Indonesia Number 11/KPTS/1994 of 1994 concerning Guidelines for Selling
and Selling Units of Apartments. If it is projected in the process of buying and selling
apartments that occur in practice, there will be a picture of the flow as below:
Flats Marketing
Advertising
Fulfilment of
supporting
documents
Flats Unit Booking
Handouts of
Flats
AJB
PPJB
Gambar 1.1 Flow of Purchasing Apartments Through Developers
PPJB is generally made before a Notary. But for reasons of practicality, the PPJB draft is
often prepared by the developer or legal officer. Even prospective consumers of apartments are
usually given the opportunity to read and study the contents of the PPJB first by being guided
by "PPJB reader officers" from the developer or developer. This is what according to Mark
Warda became one of the problems in the contract, namely "the problem of contract being too
strong would be most likely to come up when one party was thinking and later not thinking, he
or she was cheated" [6]
PPJB contains matters relating to the rights and obligations of developers and buyers. But
many developers do not understand or even ignore their obligations and responsibilities in the
implementation of the construction of apartments. Besides that, the buyer also often forgets
that he has proportional voting rights to determine how the building will be managed.
Developers and Buyers as potential owners and occupants at the initial meeting through PPJB
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should have begun to be bound to the concept of togetherness that they will face later. Mark
Warda even stated, "I have to say that this contract is not satisfactory to buyer's need." [7]
In practice, the sale and purchase of apartments in the PPJB does not provide adequate legal
protection for consumers. This is caused by an unbalanced position between the developer and
the consumer. One proof of this imbalance in position, for example, is that much information
is not given openly, for example the status of joint land ownership, building specifications, and
what if there is a delay in submission. Even if we refer to the opinion of Michael Ball,
information is a very important asset in marketing related to real estate and buildings. [8] Thus,
a buying and selling system that has the potential to harm consumers needs to be evaluated in
terms of the regulations that govern it and in the practice of its implementation.
4. CHARACTERISTICS OF BUYING AND SELLING APARTMENTS
AGREEMENTS WITH PRE-PROJECT SELLING SYSTEM
The clause in the PPJB which contains the obligation to carry out their respective achievements
needs to be balanced with the existence of legal protection, especially for consumers who in
practice have weak training skills. Legal protection is needed to ensure that consumers can
obtain their rights, both those that refer to agreements made openly and proportionally, as well
as according to laws that regulate consumer protection. This is intended to protect consumers
from the characteristics and clauses of PPJB that have the potential to cause harm to consumers.
The PPJB characteristics that have the potential to cause losses are as follows:
4.1. Testament Objects Are Things That Will Still Be
In the system of buying and selling apartments with pre-project selling, the object of the
agreement in this case is the apartment building, still under construction or not yet completed.
So that the object is an item that will still exist. This is actually permitted by the Civil Code,
namely in Article 1334 paragraph (1) of the Civil Code which states that items that will only
be available in the future can also be the object of an agreement. But the goods that will still
be there are goods that have economic value and their ownership rights can be transferred.
Transactions between the developer and the consumer at the time the apartment is not yet
finished are built, of course it will pose a relatively large potential risk. This is increasingly
risky if it is associated with land issues which above are built apartments, which are based on
various regulations. Land that is associated as a social function, will clash with the business
purpose of the apartment itself, namely to pursue profit (profit oriented). This will have an
impact on the implementation of the PPJB if the guarantee of the certainty of the developer has
fulfilled the requirements has not been carried out properly.
The Apartments Law only states that PPJB can be implemented if it has fulfilled the
construction requirements of at least 20% of the volume of construction of the apartment
building that is being marketed. The figure of 20% is considered capable of providing certainty
for consumers related to the construction of apartments which will later be completed by the
developer. Even so, the construction of 20% does not necessarily provide comfort and safety
for consumers as rights that should be obtained by consumers. In this case, consumers need
guarantees and certainty over the apartment that will be obtained later after the PPJB is
completed, completely in accordance with the agreement.
4.2. Authority of the Agreement
The clause in the PPJB often contains obligations that are borne by consumers. For example
there are rights obtained by consumers, often only on the power of power granted by the
developer, but the risk must still be borne by the consumer. This PPJB model is not beneficial
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for the position of consumers as contractors. Consumers will find it difficult to obtain their
rights to the maximum because they have to carry out additional obligations imposed on them.
This is different from the developer, who often takes refuge behind his power to transfer
obligations as is usually contained in the agreement documents.
Rows of obligations listed in the PPJB, also contain the ability of consumers to bear the
risks that arise later on at the expense of consumers. For example, in a clause governing force
majeure that may arise, any damage or destruction of the object of the agreement, it is often
confirmed that the developer is not obliged to bear the risk, either by replacing a number of
losses, or repairing any damage. In addition, the clause in the PPJB also regulates that all costs
arising from an agreement are the responsibility of the consumer which will result in not being
paid in full, ie the agreement will be terminated and the object of the agreement will return to
the developer rights as before.
The PPJB clauses as described above, are generally packaged in the form of power, so that
what was originally the obligation of the developer, then transferred to consumers. On the other
hand, on the basis of that power, the rights that should be obtained by consumers are then
transferred to the developer. This could be due to the flexibility of the power institutions
regulated in the Criminal Procedure Code, because the basis for this refers to the principle of
freedom of contract, which is used as a protector for developers.
4.3. The Use of Standardization
Standard contracts as applicable in the pre-project selling do not reflect the principle of the
balance of the parties to the contract. The imbalance of the position in the standard contract is
due to the parties having unequal bargaining positions, giving rise to "unreal bargaining". [9]
In the pre-project selling agreement that has a standard form of contract there is a form of undue
influence in equity as stated by Guenter Treitel, "undue influences are those in which one has
to enter into the transaction by actual pressure which equity is considered as an improper,".
[10] Jill Poole also explained that the standard contract is very difficult to accommodate the
proportionality of the position of the parties, according to him "the problem of standard
contract form is the may present little choice into the party who has not drawn up the
document”. [11]
Contracts can be considered fair or unfair judging from the context of community
expectations and standards. [12] Horwitz considers that the law contains dimensions of
protection, forgiveness, paternalistic and above all law is an expression of the moral sense of
society. [13] In the contract dimension there are values that are adhered to and understood as a
principle that must be met in order to ensure fair exchange in contract clauses, namely that
existing contracts can provide balanced benefits for each party through fair negotiations. By
guaranteeing the fair contract, the moral values adopted can be realized. [14] Macmillan also
considers that ideally a contract must be able to fulfil the intention of the parties, must be able
to prevent one party from benefiting from the mistake of the contract. Circumstances in the
contract must be free from fraud and protect parties who have a weak bargaining position. [15]
5. PROTECTION MODELS FOR SELLING AND PURCHASING OF
APARTMENTS BY CONSUMERS WITH PRE-PROJECT SELLING
SYSTEM
In terms of Nonet and Selznick, the law must always be responsive, which is in the scope that
is no longer left behind. [16] In other words, the function of law must be intended to elaborate
and correct the policies needed to realize legal objectives. So that regulation can be understood
as a mechanism to clarify the public interest. Therefore, with the increasingly active business
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climate faced by the people, legal protection must also come in touch to provide comfort and
security, especially for those who are said to be consumers in the business.
The lack of protection for consumers in Indonesia may be because the state-enforced law
enforcement system is totally dependent on the consumers themselves. As is known, Indonesia
still uses the principle of buying and selling caveat emptor, which literally means let the buyer
beware. This doctrine departs from the assumption that developers and consumers are in a
balanced position. In fact, at the practical level, consumers do not have strong training power.
So it is not possible if the precautionary principle must be borne by consumers.
Conceptually, the Consumer Protection Law places more emphasis on good faith imposed
on business actors, because it covers all stages in carrying out its business activities. In other
words, the business actor's responsibility is to start when the product is designed/planned until
the after-sales stage. This is to anticipate the possibility of losses experienced by consumers at
the time of purchase. The responsibility of the developer of a apartment as a business actor is:
Firstly, regarding the obligation to provide correct, clear and honest information about the
apartments for sale. In carrying out the provision of apartments, the developer must provide
correct information related to the building model, materials used, determination of prices,
public facilities and social facilities, as well as official documents that show ownership of land
and others (Article 9 paragraph (1) Consumer Protection Law). Secondly, the developer is
obliged to guarantee the quality of apartments to be traded. The developer must meet
administrative, technical and ecological requirements. These conditions are needed so that
there is a guarantee of quality standards for apartments that will be marketed to consumers.
Thirdly, the developer must provide compensation if the apartment received is not in
accordance with the agreement in the PPJB, or there are hidden defects (Article 19 paragraph
(1) and (2) of the Consumer Protection Act).
5.1. Government Intervention in The Selling and Purchasing System
Government intervention in the economy in his country takes place in many countries that are
actively dependent on the property / housing business sector. UN-HABITAT for example
conducts research in several countries in Asia related to the ‘housing market '. The results of
the study show that most Asian countries have a new development paradigm which in principle
shows that there is state participation in redesigning the economic system which has been
monopolized for decades by market mechanisms. [17] The concept of this intervention
basically seeks to explain the principle put forward by Polanyi regarding fair markets namely
"may take away someone's freedom, but in doing so they may enhance another's". [18]
The involvement of the government in protecting consumers from the negative impact of
the strength of business actors that tends to harm consumers in addition to protecting consumer
rights, which is based on the weak position of consumers, so consumers tend to be exploited
by business actors. "Government intervention model, where consumers are required to
countervailing market power, is becoming meaningless with the introduction of complex
products and services on the market."
Government intervention in the apartment business is needed with the aim of ensuring
protection for consumers. The government needs to make regulations that contain specific
requirements regarding PPJB and its scope from the marketing phase, bidding, signing up to
the transition stage of rights. This regulation is needed to encourage the apartment business to
be carried out in an open, participatory and fair manner. The government can also form new
institutions or appoint a department under the ministry that oversees the licensing and legal
fields, for example, to deal with issues relating to making agreements.
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5.2. Ownership of an Escrow Account for Apartments Developer in the Banks
An Escrow account is a guarantee given by the developer to the Bank, both from the developer
itself and from other parties, which can be used to complete the developer's obligations if the
property cannot be completed or handed over. An account made on the basis of cooperation
between the developer and the Bank needs to be used as a reference in carrying out overall
consumer protection. The government can formulate a regulation in which it regulates the
obligation for developers to deposit reserve funds in certain banks, for example, those
designated by the state, with the intention of providing guarantees to consumers that these funds
are available for use in completing property if they experience problems.
During this time, the use of a holding account only applies if there is a credit issued by the
Bank to property consumers. This condition seems to only indicate that the provision only
protects the Bank from the possibility that the developer cannot complete the construction of
the property. In fact, indirectly, this provision also helps protect consumers from the same
possibilities that occur if the developer fails to complete the building.
5.3. The Liability of Insurance for Customers
Insurance is very necessary for consumers to ensure that the apartments received will be in the
same condition as ordered. However, there are no technical rules for the Apartment Housing
Act that regulate insurance in apartment properties. The Apartments Law only describes
insurance provided to consumers of apartments which are Low-Income Communities (MBR)
as the responsibility of the Regional Government. In other words, the insurance referred to in
the Apartments Law is only limited to apartments provided by the government or subsidized
by the government alone.
This property insurance needs are also recognized by various countries. Most are insurance
made by developers with insurance companies in the interests of the developer. In Poland, for
example, there are types of insurance that can be used in property projects, such as insurance
used on all risks called CAR (Construction All Risk). This CAR can be applied if all buildings
have limited damage caused by natural disasters. [19] Whereas in Finland, developers can
obtain property insurance if they experience the potential for bankruptcy with a maximum
compensation of 25%. [20]
In the future, Indonesia must have insurance in the sale and purchase of apartments. The
government must implement Liability Insurance obligations. This insurance is an insurance
product that guarantees protection to the Insured for risks arising from claims from other parties
(Third Parties) in connection with the personal / company activities of the Insured. Forms of
compensation to third parties can be due to property damage , bodily injury or perhaps due to
financial losses or also loss of profits (consequential loss). The insurance that must exist in the
sale and purchase of apartments is insurance liability for entrepreneurs (general liability
insurance), namely developers of apartments.
6. CONCLUSION
In the practice of buying and selling apartments with a pre-project selling system, transactions
carried out by consumers and developers tend to be unbalanced. Consumers are usually only
given the option to sign an agreement that was previously prepared by the developer so as to
place consumers on the weak side. These problems are caused by lack of responsibility for
employers and weak government oversight. Therefore, a model of legal protection is needed
that involves direct government intervention. The protection needed is about guarantees for
consumers of apartments that are being built by the developer. This guarantee is needed by
consumers to ensure that the apartment will be obtained in accordance with the agreement. This
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can be done with the existence of an escrow account ownership by the developer, as well as
insurance that is borne by the developer.
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