JURNAL SOSIAL DAN SAINS VOLUME 3 NOMOR 6 2023 P-ISSN 2774-7018, E-ISSN 2774-700X |
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CESSIE IN THE
GUARANTEE OF RIGHTS OF RESPONSIBILITY REVIEWED FROM THE CIVIL CODE Doni Christian Nainggolan,
Daffa Muhammad Nazar, Asmak Ul Hosnah,
Yenny Febrianty Pascasarjana
Hukum, Universitas Pakuan Bogor, Indonesia Email : [email protected],
[email protected], [email protected], [email protected] |
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Keywords: cessie; debitur; kreditur; kpr; kepastian hukum |
ABSTRACT Background: Home
Ownership Credit (KPR) activities are generally held by the Bank. However,
often in mortgage practices there are often conflicts, one of which is bad
debt. One solution that is often used by banks as creditors is to transfer
receivables (cessie) to the mortgage object. But on
the other hand, using the implementation of the cessie
causes new problems, namely customers as debtors often object to the decision
of the cessie. Purpose: The
purpose of the study is to find out and analyze the
legal certainty of the cessie without the consent
and knowledge of the debtor connected with the Civil Code and to know and
review the description of the procedure of the cessie
creditor against third parties as new creditors based on the Civil Code. Methods: The
method used is normative juridical, using analytical descriptive
specifications, through literature studies and field studies, as well as data
collection techniques, followed by data analysis. Results: Pengaturan mengenai perbuatan cessie atas nama di Indonesia telah diatur di dalam Pasal 613 KUHPer. namun demikian, definisi mengenai cessie tidaklah disebutkan dan /atau hukumnya
menggunakan lugas serta jelas pada
peraturan perundang-undangan
tersebut, yang mana pembicaraan
tentang Pasal 613 terletak pada Bagian ke 2 Bab Ketiga, buku II KUHPer. Conclusion: Certainty
of Cessie rules without the consent and knowledge
of the debtor Connected using the KUHPer still does
not regulate specifically regarding cessies,
especially related to the implementation mechanism, so that this causes new
conflicts such as the other error, not infrequently there are multiple
interpretations in the implementation of cessie,
especially in mortgage practice. Legal certainty of cessie
still relies on Article 613 of the Civil Code to be the basis for the
creditor's cessie. but on the other hand, the
existence of multiple interpretations in interpreting Article 613 of the
Civil Code causes objections made by debtors as cessus
both through litigation and non-litigation. |
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INTRODUCTION
Housing is a basic human need, of
course, has a very strategic role in shaping the character and personality of
the nation, the need for a house to be an appropriate place to live for a
healthy, safe, harmonious and sustainable life can build Indonesian people as a
whole, who are self-identified, independent and productive (La Tenritata et al., 2022). The role of the
government in protecting the entire Indonesian nation through organizing
housing and residential areas so that people can live and live in decent and
affordable housing does not only play a role in providing and making it easy
for people to own homes, but the government as a regulator through financial
service institutions that located in Indonesia can facilitate the convenience
of citizens so they can buy the desired house, namely by making special rules
that can protect the interests of the parties. The above is in line with the
government's national program, namely "One Million Residences" (Simanungkalit & Hasni, 2019). The Ministry of
Public Works and Public Housing (PUPR) noted that, until early December 2020,
the realization of the One Million Residence program had reached 777,708 units
of the target of 900,00 housing units. The One Million Houses program continues
to be held so that every Indonesian citizen can own and live in a livable home.
Therefore, several financial institutions such as banks have played a role in
encouraging the national event "One Million Houses" by providing Residential
Ownership Credit (KPR) events. on society (Zathira, 2015).
Banks as financial service institutions,
have been able to capture one of the government's goals in creating a society
that can live in by bridging the interests of home buyers and sellers by
providing mortgage facilities, because most people are unable to buy a house in
cash (cash). The definition of KPR according to the Financial Services
Authority Regulation number 4/Pojk.05/2018 concerning Secondary Housing
Financing Companies (POJK 05/2018) means a credit facility for ownership of
landed houses and/or flats issued by creditors to buy ready-to-live houses,
including those carried out according to sharia principles, but there are also
those who interpret KPR as a form of original consumer credit known as Housing
Loans which are given to consumers who need housing, are used for personal,
family or household needs and not for commercial purposes and have no accruals
the value of goods and services in the citizens of three.
In order to realize the mortgage
process, the bank will certainly involve several parties, be it the customer as
the debtor (buyer), the developer as the provider or seller of the residential
unit, and the bank itself as a provider of financial services called creditors.
The parties involved in the mortgage process are of course bound by an
agreement that has been agreed upon, in order to disclose the rights and obligations
of each party, which if an error occurs and the parties violate the agreement
then the parties can be declared to have committed an act of default and if the
the process of implementing an agreement between the
parties violates the applicable law according to the Civil Code (KUHPer) and related laws and regulations, then the said
party can be declared to have committed an unlawful act (PMH) (Yangin, 2016).
Agreements related to using business
sometimes have complex problems and are in the form of a standard contract, as
a result, one of the parties (who needs it), like it or not, like it or not, is
obliged to Agree to the agreement that has been made (standard).
For example, a mortgage agreement designed by the bank for its customer
(debtor) has made the bank as a creditor have a more advantageous position,
because the clauses designed in the agreement are not a discussion of the
parties in choosing their rights and obligations. Clauses such as interest rates,
interest calculation systems, credit repayments, arrears penalties, extra
payments, accelerated repayment, domination or sale (penalties) of collateral
and other matters are influenced by the banking sector. This situation
indicates that every customer who applies for a mortgage is not in a profitable
bargaining position, because the agreement forms were not designed in front of
both parties but were already there beforehand by one of the parties, in this
case the bank. Basically, customers are only given two choices, namely accept
or reject it (take it or leave it) (Balperik et al., 2019).
Specifically in terms of mastery as well
as the sale (execution) of collateral in the event of bad credit, the bank will
take action to use it through an auction process or through a transfer of
receivables (cessie), as stated in the credit
agreement that has been signed and agreed upon between the creditor and the
debtor, where the terms cessie itself is not used in legislation (Yulfasni & Hamler, 2023). Cessie means a word created by doctrine, to refer to the
act of submitting invoices on behalf of those regulated by Article 613 BW (burgelijk wetbook) where
submissions are made by drawing up a deed. According to Prof. Subekti's model, Cessie means the
transfer of credit rights, which is actually the replacement of an old
creditor, who in this case is called a cedent, with a new debtor, who in this
context is called a cessionaris.
According to Mariam Daruz
Badrulzaman, written by Princess Natalia Sari,
expressed her opinion about Cessie, which is an
agreement in which the creditor transfers his receivables (on behalf of) to
another party. Cessie is a material agreement
preceded by a "title" which is an obligatory agreement. Based on the
views put forward, it is clear that a cessie is a way
of transferring and/or handing over rights to a receivable on behalf of.5 In
short, when transferring receivables on behalf of a cessie
there are 3 parties, namely the Cedent as the old creditor who owns the bill.
receivables on behalf of, then Cessionaris as the new
creditor who accepts the transfer of receivables on behalf of and Cessus as the debtor in this case only being a party (Satrio, 1991).
In short, in the transfer of receivables
on behalf of the cessie, there are three parties,
namely Cedent who becomes an obsolete creditor who has receivables on behalf
of, then Cessionaris becomes a new creditor who gets
the transfer of receivables on behalf of and Cessus
becomes a debtor in this case only as a party who gets notification or give
approval to the cessie agreement made between cedent and cessionaris. In
Indonesia, arrangements regarding the act of transferring receivables on behalf
of are regulated in Article 613 of the Civil Code. however, the definition of cessie is not stated and/or explained in a straightforward
and obvious manner in the aforementioned statutory regulations. Article 613 of
the Criminal Code reads: "Delivery of receivables on behalf of and other
goods that are not bodily, is carried out by means of producing an authentic
deed or underhanded which delegates the rights over the goods to other people.
This surrender has no consequences for the debtor before the surrender is
notified to him or agreed in writing or acknowledged by him. Submission of debt
securities upon appointment is carried out by giving them; the delivery of debt
securities by order is carried out by providing it along with the endorsement
of the letter "
In practice, Cessie
often causes feuds between the parties. Many of Cessie's
problems occur, especially between customers and the Bank. The researcher
explored the model of the case that had been experienced by one of the
customers as a debtor (hereinafter referred to as Debtor X) in a mortgage
agreement with a bank in Bandung (hereinafter referred to as Bank Y) as a
creditor. Briefly chronologically, in 2011 Debtor X entered into a credit
agreement with Bank Y for a mortgage program. but in the middle of the
agreement application, Debtor X was in arrears in paying his credit
installments, so Bank Y decided to make a Cessie to
the new creditor (cessionaris) without Debtor X's
knowledge by referring to the KPR agreement between Debtor X and Bank Y namely
in Article 20 paragraph ( two) the agreement between Debtor X and Bank Y which
reads: "The bank does not have to notify the debtor regarding the
execution of a cessie to other parties, So that if later the party who gets the cessie
exercises his rights as a creditor, then this can be stated in full solely
according to the agreement designed between the bank and the party receiving
the submission of the receivables and the existence of this cessie
does not affect the application of the debtor's obligations in accordance with
the credit agreement." then with the cessie
action carried out by Bank Y, it made Debtor X feel objection because Debtor X
felt that this action was without his knowledge and approval. In addition, the cessie's actions caused Debtor X to be confused when he was
going to make payments on his mortgage arrears. when Debtor X contacts Bank Y,
Bank Y seems to have lost his hand, in a sense.
Has handed over the mortgage battle to
the cessionaris as the new creditor. but on the other
hand, when Debtor X asked for documents related to Cessie
such as the deed of the sale and purchase agreement for receivables and/or the
deed of agreement for the transfer of receivables, Bank Y did not provide them
at all. Even the cessionary did not contact Debtor X at all (Erlina & Gunawan, 2022). An example of
another problem is according to the Supreme Court Decision number 1811 K/Pdt/2018, namely the case between Ester Lilik
Wahyuni and PT Bank Tabungan Negara (Bank BTN). In
the earlier case, Esther Lilik Wahyuni
(hereinafter referred to as Ms. Esther) as the debtor and legal owner of a plot
of land and a residential building located in the Kecap
Wetan Village, Lakarsantri
District, Surabaya City (Perum Forest Mansion B-26),
as recorded in Certificate number 6915 covering an area of 128M2, on behalf of
Esther Lilik Wahyuni (Cahyono, 2004).
The object was purchased by Ms. Esther
through the residential ownership credit system funded by Bank BTN, as per the
credit financing number 0000220120816000016 which was made on October 8 2012,
and confirmed by a notarial deed according to the credit agreement number
159/L/2012/Dplicate 3. The credit agreement was then
subject to the deed of imposition of mortgage rights designed by the notary
Anita Lucia Kendarto, Bachelor of Law, Magister of
Notary on February 7 2013 where the deed of imposition of mortgage rights was
then registered on March 28 2013 which was recorded and issued by the office
Surabaya City National Land Agency (BPN). Therefore, the mortgage right is
currently being assigned to the object using the 2005/2013 figure. after during
the credit travel period, it turned out that Ms. Ester experienced a decline in
its ability to pay, so that the plaintiff has repeatedly tried to negotiate
with Bank BTN, but has not found a common ground. on November 16 2015, through
letter number 953/S/RAS/KC.Sby/XI/2015,
Bank BTN then notified that Cessie had occurred, on
KPR-BTN loans on behalf of Sdri. Ester has
transferred its receivables to A.S Effendi as Cessor (Sari, 2010).
For this incident, Mr. Ester objected
and made a subpoena to the Surabaya city district court because it was not in
accordance with Law number 4 of 1996 regarding Mortgage Rights (UU Mortgage
Rights). when viewed from the origin of the problem above, the KPR program is
closely related to Mortgage Rights. of the Mortgage Law Article 1, Mortgage
means the guarantee right which is imposed on land rights as referred to in Law
number five of 1960 concerning the Basic Agrarian Regulations (UUPA), together
with or without other objects which are one -a union with the land for the
settlement of certain debts, which gives priority to certain creditors over
other creditors. Based on the description put forward, the study aims to examines
(1) How is legal certainty of cessie without the
consent and knowledge of the debtor linked to the Civil Code? and (2) what is
the creditor cessie procedure for third parties as a
new creditor based on the Civil Code?
RESEARCH METHODS
In this article the author uses the method
of quantitative juridical data analysis, which is a way to draw conclusions
from the collected research results. Juridical, bearing in mind that this
research is based on the origin of existing statutory regulations which become
normative legal customs (Moleong,
2010). Quantitative, more sensitive and able to
adjust to a lot of sharpening the shared impact on the patterns of values
encountered. Particularly with regard to using the position of the cessie rule without the consent and knowledge of the debtor
linked to the Criminal Code as well as the creditor's cessie
procedure for third parties to become a new creditor according to the Civil
Code (Suherman
& Satrio, 2010).
RESULTS AND DISCUSSION
Cessie's Legal Certainty Without the
Consent and Knowledge of the Debtor Linked to the Civil Code
Arrangements
regarding cessie acts on behalf of Indonesia have
been regulated in Article 613 of the Civil Code. however, the definition of cessie is not stated and/or explained in a straightforward
and clear manner in these laws and regulations, where discussion of Article 613
is located in Part 2 of Chapter Three, book II of the Civil Code. book II of
the Criminal Code regulates the discourse of "objects", from the
usual rules. The cessie itself is regulated in book
II of the Civil Code Article 613 to 624, with the elements of a cessie being:
1.
Must
use an authentic deed as well as a deed under the hand.
2.
There
is delegation of receivables in the name of and other goods that do not have a
body to other people.
Judging
from the elements above, it can be said that cessie
bills on behalf. It should be understood, what is meant by "bills on
behalf of" are bills whose creditor is exclusive and well known to the
debtor. This is not the same as bills on appointment (aan
toonder), which are bills whose creditors
(intentionally made, for the sake of facilitating transfer) are not certain. In
addition, those who are considered to use bills, do not always have to be bills
for a sum of money. What is meant by bills here are bills for achievements,
which are intangible objects. So, if you say cessie
means submitting a bill on your behalf, it doesn't mean it has to be a bill for
an amount of money, although generally it is about an amount of money. So, what
is meant by using a bill on behalf is a bill for the performance of the
agreement, in which the creditor means exclusive (known to the debtor).
The
author is of the opinion, according to the description above, that Cessie only transfers the rights, not the object. In this
case, the right transferred is the right of credit which was originally with
the cedent (old creditor) to Cessionaris (new
creditor). For example, in mortgage practice, when bad credit occurs, the
debtor can take cessie action to overcome the bad
credit, so the bank is looking for a new creditor to transfer the receivables
by transferring the mortgage on the credited residence, so that it can be said
that the one who has switched only the Mortgage Right, while the object in this
case the residence does not automatically belong to Cessionaris.
Whereas
in the Mortgage it has been clearly and explicitly regulated, that the object
of guarantee for the imposition of the Mortgage can be carried out in the form
of a Mortgage Certificate which is recorded and vomited by the BPN, this is
obvious and the legal process and provisions, so that the legal correlation
between the debtor and the creditor must According to the Mortgage Law, in
practice in the implementation of mortgages, it is not sporadic that the
creditor does a cessie if bad credit occurs, while
the regulations regarding cessies in Indonesia have
not been specifically regulated both procedurally and technically in preparing
documents and so on, as a result causing multiple interpretations in their
implementation. . without exception, using the cessie
action carried out by the creditor caused new problems between the parties.
Especially for debtors who often feel aggrieved by the creditor's cessie action.
With
the objections raised by the Debtor, cases related to cessies
emerged which were resolved through litigation. Among other things, similar to
what has been described in the introductory sub-chapter, there are several cessie problems that occur among residents. using the
existence of these cases, describes that there are often multiple
interpretations related to the implementation of the cessie,
including the practice of the mortgage program that was held. Legal certainty
is one of the goals of legal origin. With the certainty of rules, all
applications of legal actions can run in an orderly manner and can be accounted
for. but on the contrary, if an activity or act of regulation does not have
legal certainty it will create a new polemic that is difficult to avoid among
the people.
One
of the models means the Cessie phenomenon, especially
in the midst of mortgage practices. using only relatively less capital in
Article 613 of the Civil Code to regulate Cessie
applications in practice. Often the disparity of opinion in interpreting cessie causes disputes between debtors and creditors. the
model that occurred in the first case experienced by Debtor X. Debtor X can be
said to be in default because he is in arrears on the mortgage that has been
taken. On this basis and according to the credit agreement contained in the
clause "The bank is not obliged to notify the debtor regarding the
implementation of a cessie to other parties"
when viewed in the agreement, the author is of the opinion that the Clause
regarding Cessie in the agreement between Debtor X
and Bank Y contradicts using Article 613 of the Civil Code .
In
Article 613 of the Civil Code it is stated that “. This surrender has no
consequences for the debtor before the delivery is notified to him or agreed in
writing or acknowledged by him. credit agreement above, there is a statement
"The bank does not have to notify the debtor about the implementation of
the cessie to other parties" then this clause
cannot be justified. The author is of the opinion that the agreement is null
and void because it is not in accordance with the objective conditions as in
Article 1320 of the Civil Code, for an agreement to be valid, four conditions
are needed, namely an agreement of competence, regarding a certain matter and a
lawful cause. The struggle experienced by Debtor X was almost the same as that
experienced by Ms. Ester Lilik Wahyuni,
namely entering into a KPR agreement with Bank BTN, where at one point there is
an agreement stating ".....the bank does not have to notify the
debtor" but in this case it has reached the court process and even
cassation, where in the first level decision , the court canceled the Cessie deed between Bank BTN and Mr. A.S Effendi as ceesionary, and returned the correlation of the credit
agreement between Ms. Ester Lilik Wahyuni
and Bank BTN, but at the Appeals and Cassation stages the Supreme Court
annulled the district court's decision, this is a sign that problems regarding cessies still occur frequently and there are some
disparities of opinion because in its implementation it only relies on Article
613 of the Criminal Code.
The
author will review the consequences of cessus
payments to cessionists when a cessie
has occurred. Secession payments to cessionaris can
occur if there is a notification submitted by the cessionaris
and cedent, as a result the payment or credit
installments can be said to be legal, after the debtor (cessus)
has received official information about the cessie,
that notification obligation means in accordance with Article 613 paragraph
(two) in the sense that Cessie can only be made
according to the credit agreement designed, as long as there is a clause
regarding cessie in the agreement. however, this
clause may not conflict using Article 613 of the Civil Code, where the cessie must have the knowledge or approval of the debtor in
writing and be proven using a deed of transfer of receivables, both authentic
and underhanded. then, to avoid existing disputes and to avoid the multiple
interpretations that often arise in cessie practices,
especially in mortgage application programs, more specific legal certainty is
needed in regulating cessies similar to the cessie application mechanism.
Cessie Creditor Procedures for Third
Parties as New Creditors Based on the Civil Code
The
surrender of movable objects is regulated in Article 612 of the Civil Code.
Meanwhile, the delivery of goods that are not involved is regulated in Article
616 of the Civil Code. There are three types of invoices namely:
1.
Invoice
for the order
2.
Invoice
on appointment
3.
Billing
on behalf of
The
method for submitting the bill rights is regulated in Article 613 of the Civil
Code. in Article 613 paragraph (three) it is stated that the submission of
invoices on appointment is carried out using the submission of the invoice in
question, while the submission of invoices for orders is carried out using the
submission of the invoice accompanied by an endorsement. Submission of rights
to claim on behalf of, including rights to other intangible objects is carried
out by making a cessie deed, according to Article 613
paragraph (1). The special conditions for Cessie from
Article 613 must be carried out by forming a deed and such deed, called a cessie deed. As long as this stipulation is clear, a
certain form is determined for the cessie, that is,
in writing, even though for obligatory relations which form the basis of the cessie, such as buying and selling, an exclusive form is
not required (able to speak, able to write, capable of being authentic).
It
is enough for Cessie to put it in a good deed that is
both underhand and authentic, in which it is expressly stated that the old
creditor has thereby handed over his billing rights to the new creditor. The
conclusion is that oral cessie is illegal, and
because of that, the billing rights are not passed on to other people. but as
long as what is described above should not be interpreted that a cessie without the acceptance of the other party already
exists, because a unilateral statement without acceptance does not cause a cessie, based on Article 1131 of the Civil Code the
principle applies, that the debtor is responsible for his debts with all of his
property. Based on that, the creditor has an interest in knowing which assets
are still or have been the assets of the debtor. The debtor's assets consist of
all assets and liabilities, thus including all intangible objects belonging to
the debtor, and the assets include bills owed by the debtor to the debtor. the
procedure for submitting receivables (cessie) is not
specifically regulated (Darmawi, 2011).
The
Civil Code, as a result it can be said that regarding the cessie
procedure there is no certainty in the rules (Sup, 2019). Using this basis, the
authors try to analyze the origin of the news regarding the application of a cessie, especially in mortgage practices. The cessie mechanism is not the same in every institution. The
author takes the model of the origin of the problem as has been experienced by
Debtor X (Waluyo, 2022). When Debtor X is in
arrears, he is given Warning I, Warning II, and Warning III, where the contents
do not mention Cessie at all. after sending a
warning, Bank Y gave a letter of notification that a cessie
had occurred which was handed over to individuals to become cessionaries.
if one looks closely at the problems experienced by Debtor X, the author is of
the opinion that the mechanism carried out by Bank Y cannot be said to be in
accordance with Article 613 of the Civil Code which reads "This surrender
has no consequences for the debtor before the delivery is notified to him or
approved in writing or acknowledged by him. ”. In its
warning letter, Bank Y should have notified the debtor in advance that Cessie would implement it if the warning letter was not
heeded by Debtor X. The second problem was that experienced by Ms. Esther Lilik Wahyuni experienced
something similar. when there were arrears on her mortgage, Ms. Ester Lilik Wahyuni tried to negotiate
with Bank BTN but could not find common ground. but after that, Bank BTN made a
cessie by notifying Ms (Setiono, 2018).
The
certainty of Cessie rules without the consent and
knowledge of the Debtor Connected using the Criminal Code still does not
specifically regulate cessies, especially regarding
the implementation mechanism, so that this causes new conflicts such as the
only error, it is not uncommon for multiple interpretations to occur in the
implementation of cessies, especially in KPR
practices. The legal certainty of cessie still relies
on Article 613 of the Civil Code as the basis for carrying out a cessie by the creditor.
But
on the other hand, the existence of multiple interpretations in interpreting
Article 613 of the Civil Code causes objections to be made by the debtor as a cessus either through litigation or non-litigation. then,
the debtor thinks that a cessie can only be carried
out after first notifying the debtor or the debtor's approval before the cessie is carried out. the mechanism for Cessie Creditors for Third Parties to become New Creditors
according to the Criminal Code is still being implemented, especially for KPR
practices. the procedures carried out by the creditor are still left to the
institutions that carry out the cessie, in this case
the Bank as the creditor in KPR practice. based on existing cases, there is a
mechanism that the author considers to be in sync using Article 613 of the
Civil Code which can be used as a statement for creditors in carrying out a cessie, namely the procedure carried out by Bank BJB.
In
essence, Bank BJB went through several stages in carrying out the cessie, namely first notifying the debtor in advance by
directly inviting the debtor to discuss the cessie.
then after the occurrence of a cessie it is notified
back to the customer as the debtor that there has been a transfer of
receivables (cessie) at a company. Provisions
regarding Cessie, especially related to cessie procedures, do not yet have adequate legal
certainty. legal certainty is needed that regulates more specifically related
to the implementation of a cessie, either in the form
of legislation or simply in the form of a circular issued by Bank Indonesia.
The cessie application procedure must have
guidelines. The cessie application mechanism must be
the same for every creditor who will carry out a cessie
so that multiple interpretations do not occur which often occur between debtors
and creditors.
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