Perbuatan ultra vires dan kaitannya dengan tanggung jawab direksi dan perseroan terbatas = Ultra vires act and in relation to the liabilities of the board of directors and the limited liabilities company

Wahjuningsih, Wahjuningsih (2004) Perbuatan ultra vires dan kaitannya dengan tanggung jawab direksi dan perseroan terbatas = Ultra vires act and in relation to the liabilities of the board of directors and the limited liabilities company. Masters thesis, Universitas Pelita Harapan.

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Abstract

The Board of Directors of the Company is fully responsible to manage the Company for the interest and purposes of the Company and represent the Company within and outside the court of Justice. In performing its duties, the Board of Directors cannot effectively do anything beyond the powers of the Company expressly or impliedly conferred upon it by its articles of association. This limitation has two purposes, namely: to protect the Company's shareholders so that they may know the objects in which their money is to be invested and to protect the Company's creditors by ensuring that the Company's funds, to which they must look for payment, are not dissipated in unauthorized activities. The powers of the Company are stipulated in its objectives and purposes referred to in the articles of association. If the Board of Directors performs an action beyond the powers of the Company, then such Board of Directors does an ultra vires action. The ultra vires action is in contravention of article 2 of Law No. 1 Year 1995 regarding Limited Liabilities Company, and therefore, pursuant to article 1335 of the Civil Code prevailing in Indonesia, the ultra vires action has no legal effect. The court of justice of Indonesia expands the meaning of ultra vires actions. According to the court of justice of Indonesia, the actions of the Board of Directors which is in consistent with the articles of association of the Company constitutes an ultra vires action. The action which has been performed without the approval of another organ is an ultra vires action, and therefore it is not valid and is not binding to the Company. A consequence of the ultra vires action is null and void since the ultra vires action does not comply with a fourth requirement for validity of an agreement, namely: lawful objective. Therefore, the ultra vires action is not binding to the Company and the members of the Board of Directors shall be jointly and severally liable to acts it was performed. There are exceptions to the ultra vires doctrine in that a specific action although falling outside the limits of the objectives and purposes ot the Company, is nevertheless legal and thus is binding on the Company. The action which would be ultra vires under the normal conditions are nevertheless to be regarded as intra vires, provided that the third party who dealt with the company acted in good faith and with reasonable care

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