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ANALYSIS OF THE DISPUTE OF UNLAWFUL ACTS IN THE LAND
SALE AND PURCHASE AGREEMENT
Rafi Hidayahtullah Pakaya, Ananda Chaya Narendra, M Nauval Ivanda, Ary
Andryanto, M Rizky Ardiansyah
Universitas Narotama Surabaya
rafihidayatulla[email protected]
ARTICLE INFO ABSTRACT
Received:
October 2021
Revised:
November 2021
Approved:
November 2021
Background: The sale and purchase of land in this study leads to the rights
of a land. From a legal point of view, buying and selling land is not about the
land being traded, but the right to use the land. Regulations regarding the
transfer of land rights are regulated in PP No. 34 of 1997 Article 32 paragraph
(2) which reads: Under certain conditions as determined by the Minister, the
Head of the Defense Agency can register the transfer of ownership rights to
a parcel of land, which is carried out between Indonesian citizens individually
with evidence of a deed not made.
Aim: This study aims to analyze the dispute of unlawful acts in the land sale
and purchase agreement
Method: This type of research is normative legal research that focuses on
applicable legal norms and the study of legal norms is carried out by
examining secondary data as the main data, while primary data as supporting
data. This normative legal research is viewed from several aspects, such as
aspects of theory, philosophy, comparison, general explanation, composition,
and so on.
Findings: The UUPA does not clearly explain what is meant by buying and
selling land, but agrarian law uses a system and legal principles. The
customary law used is the customary law that applies 138ndi s adapted
nationally and follows modern developments. In essence, buying and selling
land is the transfer of land rights from the seller to the buyer, so that the buyer
can use the land according to its function. According to the UUPA, there are
various types of land rights that can be transferred, namely property rights,
use rights and building rights.
KEYWORDS
Agreement, Sale and Purchase, Unlawful Acts
INTRODUCTION
Judging from the development of cooperation in the world from all aspects, one of them
in the field of cooperation is growing so rapidly. In the development of cooperation, contract
law also develops rapidly. People are also increasingly binding themselves in an agreement
that results in the emergence of various kinds of agreements, including one of which is a sale
and purchase agreement between the seller and the buyer.
The agreement of sale and purchase is called a legal act. The definition of a legal act is an
act that causes legal consequences. Agreement is one product of civil law. The term "Civil
Law" (Privat recht) is used as opposed to the term "Public Law" (Publikrecth). Explanation of
Civil Law is a legal rule that regulates relations or actions between civil law subjects for the
benefit of one legal subject with other relevant legal subjects, without involving the public
interest or other broader interests (Fuady, 2015).
All the rules in Civil Law are contained in the Civil Code (Burgerlijk WetBoek). The
Indonesian Civil Code is a translation of the Dutch Civil Code applicable in the Netherlands,
while the Dutch Civil Code is derived from the French Civil Code which was made during the
Analysis of the Dispute of Unlawful Acts in the Land Sale and Purchase Agreement
139 Interdisciplinary Social Studies, 1(2), November 2021
reign of Napoleon Bonaparte, so it is also called the Napoleonic Code. Napoleon Bonaparte
made the law based on its source, the Roman Code of Law, commonly known as the Corpus
Juris Civilis. Fuady (2015) states that the book of laws made by Napoleon consists of three
main pillars, namely:
1) The concept of individual property rights;
2) The concept of freedom of contract;
3) The concept of a patrilineal family.
The agreement applies the concept of freedom of contract. The principle of freedom of
contract can be analyzed from the provisions of article 1338 BW paragraph (1) which reads
"All agreements made legally apply as law for those who make them." The principle of freedom
of contract gives freedom to the parties written in Salim's book (2013) to make:
1) Make or not make an agreement;
2) Entering into an agreement with anyone;
3) Determine the contents of the agreement, its implementation, and its requirements;
4) Determine the form of the agreement, namely in writing or verbally
The law of the agreement has an open nature, which in its content means that it can be
determined by the parties with several provisions, namely not contradicting public order,
morality and the law in the sale and purchase agreement made by the seller and the buyer.
In Dutch, the term against the law is called onrechmatige daad. Acts against the law are
actions that violate subjective rights that have been regulated by law and are contrary to the
legal obligations of the perpetrators that have been determined by law (Subekti, 1979).
In Book III of the Civil Code, especially Articles 1365-1380, it has been regulated about
acts against the law, acts against the law can be used as the basis for a claim for compensation.
Article 1365 of the Civil Code states that "Every unlawful act that causes harm to another
person, obliges the person who because of his fault causes harm to another person, obliges the
person who because of his fault caused the loss, to compensate for the loss" (Syahrani, 2013).
In the Civil Code there is an openness system that frees everyone to make or enter into
agreements with any parties, in making an agreement it is necessary to pay attention to the legal
terms of an agreement. The terms of the agreement are contained in Article 1320 of the Civil
Code, which states: 1) Agreement; 2) Skills; 3) Specific objects; and; 4) Halal power.
Agreements are divided into 2 (two) types, namely named agreements (Nominaat) and
unnamed agreements (Innominat), named agreements are regulated in the Civil Code such as
rental agreements, safekeeping of goods, borrowing and buying agreements, while unnamed
agreements are agreements that have not been regulated in the Civil Code.
From an unnamed agreement (Innominat) was born a binding sale and purchase agreement
(Called PPJB), the term PPJB is not listed in the Act but we find many in everyday life. PPJB
is an assistance agreement that has a function as a preliminary agreement that is free, in making
PPJB must pay attention to the legal terms of the agreement mentioned above.
The sale and purchase of land in this study leads to the rights of a land. From a legal point
of view, buying and selling land is not about the land being traded, but the right to use the land.
Regulations regarding the transfer of land rights are regulated in PP no. 34 of 1997 Article 32
paragraph (2) which reads: "Under certain conditions as determined by the Minister, the Head
of the Defense Agency can register the transfer of ownership rights to a parcel of land, which
Analysis of the Dispute of Unlawful Acts in the Land Sale and Purchase Agreement
140 Interdisciplinary Social Studies, 1(2), November 2021
is carried out between Indonesian citizens individually with evidence of a deed not made. by
the PPAT, however, according to the Head of the Land Agency, the size of the truth has been
deemed sufficient in order to register the transfer of rights to the land in question”. After the
issuance of the land certificate, the power of ownership over the land will be transferred to the
new owner. And the transfer of ownership rights and objects in the form of land to the buyer.
In the process of buying and selling land, not everything went well. There are various
problems regarding the sale and purchase of land, one of which is in the scope of unlawful acts.
The explanation of unlawful acts is regulated in Article 1365 of the Civil Code, which explains
that: "every act that violates the law, which causes harm to another party, then the person is
obliged to compensate for the loss because of his mistake".
An object may contain elements of an unlawful act if: 1) Actions that are made contrary
to the rights of others; 2) Actions that are made contrary to his own obligations; 3) Actions that
are made against the norms of decency; and 4) Actions that are made are contrary to good
social order (Fuady, 2013). Many parties initially doubted the unlawful act, whether it was a
separate field or just a collection of legal meanings that were not included in one of the existing
legal fields and constituted an error in the field of civil law (Fuady, 2003). Therefore, the
research aims to analyze the dispute of unlawful acts in the land sale and purchase agreement
in Indonesia.
METHOD
This type of research is normative legal research that focuses on applicable legal norms
and the study of legal norms is carried out by examining secondary data as the main data, while
primary data as supporting data. This normative legal research is viewed from several aspects,
such as aspects of theory, philosophy, comparison, general explanation, composition, and so
on.
RESULTS AND DISCUSSION
Agreement in Sale and Purchase
In contract law, an agreement has the term in Dutch "overeenkmst". The agreement made
by the parties must be based on the principles of the agreement. In this case it is necessary to
pay attention, because the principles of the agreement are used as guidelines in carrying out the
agreement. The principles that must be considered by the parties in making an agreement are
as follows.
Good Faith Principle
The agreement also adheres to the principle of good faith, which is regulated in Article
1338 paragraph (3) of the Civil Code which states "Agreement must be carried out in good
faith". The principle of good faith is very important so that the agreement made does not cause
harm to one of the parties.
Personality Principle
Article 1315 of the Civil Code formulates the principle of personality which states, "In
general, a person cannot enter into a binding or agreement other than for himself".
Analysis of the Dispute of Unlawful Acts in the Land Sale and Purchase Agreement
141 Interdisciplinary Social Studies, 1(2), November 2021
Principles of Consensualism
Consensualism means a binding agreement for the parties who made the agreement since
the agreement was reached, so that the agreement does not require certain actions (Budi &
Ahlan, 2008).
Article 1317 of the Civil Code explains about third parties, in an agreement a third party
can enter into an agreement that has been made by the parties if the rights of the third party are
contained in the agreement. Every agreement must pay attention to the legal conditions in
making an agreement, Article 1320 of the Civil Code regulates the legal requirements for
making an agreement, namely agreement (Between the parties), skills, certain matters, and
Halal reasons (Muljadi & Widjaja, 2010).
Every agreement is required to pay attention to the things described above. The stages in
making the agreement include 3 stages as follows:
1) Before Making an Agreement (Pre-contract)
The pre-contract stage is the stage before the agreement is made or drafted. At this
stage the parties who will make the agreement must pay attention to the following
things (Budiono, 2014):
a) Identification of parties: At this stage the parties who will make the agreement
determine the identity, the parties must have a clear identity and are legally capable
and authorized in making an agreement.
b) Determination of rights and obligations: Determine the rights and obligations of
the parties who make the agreement, and determine the contents of the agreement
such as compensation and so on.
c) Negotiation: Bargaining process between the parties and aims to reach an
agreement on the object and substance of the agreement to be made
2) Agreement Making
At this stage there is a statement of will or agreement between the parties making
the agreement. The steps that must be carried out in this stage are as follows (Salim,
2003):
a) Agreement Draft: The agreement draft is made by one party or both parties to
design the text or concept of the agreement.
b) Exchanging the contents of the draft agreement: The parties to the agreement
exchange the draft agreement they have made, aiming to provide the parties with
an opportunity to study, and investigate the contents of the draft agreement.
c) Revision of draft agreement: Revision is an attempt to make changes to the contents
of the draft agreement before it is approved and signed by the parties making the
agreement.
d) Cover: The closing part is a manifestation of the agreement by the parties making
the agreement and the signing of the agreement on all the rights and obligations
that have been agreed upon.
3) After the Drafting of the Agreement
It is the implementation stage in the contents of the agreement made and agreed upon
by the parties making the agreement. The following are things that must be considered
after the agreement is agreed and signed (Salim, 2003).
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a) Execution of the Agreement: The parties must carry out their respective rights and
obligations as stated in the agreement, the parties must understand the contents of
the agreement that has been made.
b) Alternative Settlement If There is a Dispute in the Agreement: In an agreement,
disputes can arise from the consequences of not implementing the agreement in
good faith, in the agreement the parties can choose the dispute resolution method
to be taken.
Binding Agreement in the Sale and Purchase of Land
The definition of a binding sale and purchase agreement is, according to R. Subekti,
explaining that the agreement between the seller and the buyer before the sale and purchase
process is held, there are elements that must be fulfilled, namely the certificate does not exist
because it is still in process, and the price has not been paid off. In addition, according to
Herlien Budiono, the binding sale and purchase agreement is free and serves as a preliminary
agreement (Budiono, 2004). While the function of the sale and purchase binding agreement
can strengthen the main agreement to be carried out, so that the sale and purchase binding
agreement is the beginning of the birth of the main agreement. A relief agreement has the
purpose of preparing, strengthening, changing or finalizing a legal relationship. So that the
binding sale and purchase agreement has a function as an initial or preliminary agreement that
can provide confirmation to carry out the main agreement or main agreement (Budiono, 2004).
The binding sale and purchase agreement contains the introduction of the main agreement
in the form of the rights and obligations of the parties in which there are conditions agreed
upon by the parties so that an agreement becomes valid. For example, the binding agreement
for the sale and purchase of land rights, the binding agreement for the sale and purchase of land
rights usually contains promises from both the seller of land rights and the buyer regarding the
fulfillment of rights and obligations so that the main agreement concerning the sale and
purchase and the deed of sale can be signed at before the PPAT official. Such as the land
certificate management agreement which will be taken care of before the sale and purchase is
carried out by the seller, and the promise to immediately pay off the payment by the buyer so
that the sale and purchase deed can be signed in front of the PPAT official.
The form of binding sale and purchase agreement was born because of the need and there
are no rules regarding a certain form of binding sale and purchase agreement. This is also in
accordance with Herlien Budiono's opinion, that the aid agreement has a function as an
introduction and is free in form (Budiono, 2004).
Definition of Unlawful Acts
In 1919 in Indonesia, unlawful acts were interpreted broadly, which included several acts,
namely:
Actions that are contrary to the rights of others
Article 1365 of the Civil Code regulates actions that violate or conflict with the rights of
others (Inbreuk opeens anders recht). A person's rights that are violated must be recognized by
law (Fuady, 2005).
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Acts contrary to their own legal obligations
Can be included in the category of unlawful acts if the obligations of the perpetrator
conflict with their own legal obligations, the legal obligations given to a person can be in the
form of written or unwritten legal obligations. So, it is not only against the written law, it is
also against the rights of a person according to the law.
Acts against decency
The act of violating decency in society has been recognized as an unwritten law and is also
considered an act against the law. Actions that violate decency cause harm to other parties, can
claim compensation based on Article 1365 of the Civil Code based on unlawful acts.
Actions that are contrary to necessity in good social relations
If a person commits an action that harms another person and violates written articles, he
or she can be charged with an unlawful act, because the action is contrary to the principles of
obligation in social interaction. This obligation in the community is not written, but is
recognized by the community concerned (Fuady, 2005).
In Article 1365 of the Civil Code explaining acts against the law, Article 1365 of the
Criminal Code only stipulates that if a person suffers a loss due to an unlawful act committed
by another person against him, then that person can file a claim for compensation to the State
Court.
An unlawful act is an act that is born from the law as a result of someone who violates the
law and is regulated in the Civil Code. In a narrow sense, an act against the law can be
interpreted as "a person who violates the rights of others or is contrary to his own legal
obligations". The rights that are violated are the rights recognized by law (Widjaja & Muljadi,
2017).
Acts against the law in Indonesia normatively refer to the provisions of Article 1365 of the
Civil Code, the elements of the article are: 1) There is a case; 2) Against the law; 3) There is
an error; 4) There is a loss; and 5) There is a causal relationship between the actions that cause
losses.
Acts against the law in Indonesia originate from Continental Europe which are regulated
in Article 1365 of the Civil Code to Article 1380 of the Civil Code, in these articles regulating
responsibility for unlawful acts. Article 1367 paragraph 1 of the Civil Code explains: "a person
is not only responsible for losses caused by his own actions but also due to the actions of people
who are his dependents or caused by goods under his control" (Book of the Civil Code
(Burgerlijk Wetboek, Article 1367, nd). Article 1367 paragraph (1) of the Civil Code divides
responsibilities into several categories:
1) Responsibility for the actions of others
a) Acts committed by a person become his general responsibility;
b) Responsibilities of parents and guardians to minors (article 1367 paragraph 3 of the
Civil Code);
c) The employer's responsibilities towards the employed person (article 1367
paragraph 3 of the Civil Code);
d) The teacher's responsibility towards students and craftsmen (Article 1367 paragraph
4 of the Civil Code).
Analysis of the Dispute of Unlawful Acts in the Land Sale and Purchase Agreement
144 Interdisciplinary Social Studies, 1(2), November 2021
2) Responsibility for the goods under his control.
a) Responsibility for goods in general (Article 1367 paragraph 1 of the Civil Code)
b) Responsibility for animals (article 1368 of the Civil Code);
c) Owner's responsibility for the building (Article 1369 of the Civil Code).
Buy and Sell Land
The UUPA does not clearly explain what is meant by buying and selling land, but agrarian
law uses a system and legal principles. The customary law used is customary law that applies
and is adapted nationally and follows modern developments (Harsono, 1997). The enactment
of the LoGA on September 24, 1960 resulted in a cash transfer of land, therefore, after the
enactment of the LoGA, any transfer of land rights must be carried out in front of an official
appointed by the Minister of Agrarian Affairs. Article 26 paragraph (1) of the LoGA, explains:
"Sales and purchases, exchanges, grants, gifts by will, gifts according to customary law
and other acts intended to transfer property rights and their supervision is regulated by a
Government Regulation"
To implement the article, the government issued PP No. 10 of 1961 which has been
updated with PP No. 24 of 1997, Article 37 paragraph (1) reads:
"The transfer of land rights and ownership of the apartment unit through buying and
selling, exchanging, grants, income in the company and other legal acts of transferring rights,
except the transfer of rights through auction can only be registered if it is proven by a deed
made by the Land Deed Making Officer (PPAT) which is authorized according to the
provisions of the legislation”
The subject of buying and selling land seen from the UUPA
The subject of buying and selling there are two, namely the seller and the buyer.
a. Seller
According to the Basic Agrarian Law No. 5 of 1960 article 21 which can be subject
to sale are people who have land rights and have the status of Indonesian citizens.
b. Buyer
Buyer subjects in buying and selling are subjects who have land rights stipulated by
law, subjects who can have land rights according to law, namely: 1) Single Indonesian
citizen; 2) Legal entities that have been regulated by PP No. 38 of 1963 which is
involved in the religious and social fields (Banks established by the government (Bank
Negara), cooperative associations established under Law no. 79 year 1958, religious
body appointed by the State Minister of Home Affairs by listening to the opinion of the
minister of religion, and social agency appointed by the Minister of Home Affairs after
hearing the opinion of the Minister of Social Affairs).
Land as an object of sale
In essence, buying and selling land is the transfer of land rights from the seller to the buyer,
so that the buyer can use the land according to its function. According to the UUPA, there are
various types of land rights that can be transferred, namely property rights, cultivation rights
and building rights (Perangin, 1991).
Analysis of the Dispute of Unlawful Acts in the Land Sale and Purchase Agreement
145 Interdisciplinary Social Studies, 1(2), November 2021
In essence, buying and selling land is the transfer of land rights from the seller to the buyer,
so that the buyer can use the land according to its function. According to the UUPA, there are
various types of land rights that can be transferred, namely property rights, cultivation rights
and building rights.
Legal Efforts in the event of an unlawful act in the sale and purchase of land lawsuit
In a broad sense, the lawsuit aims to provide guarantees for the implementation of legal
order in civil cases, in the narrow sense that the lawsuit aims to obtain legal protection with
state assistance. A thing that is demanded by someone in order to get a legal path and ends with
a judge's decision, is expected to get what is his right back.
Lawsuit (Contentius)
Contentious lawsuits are explained in Article 2 paragraph (1) of Law No. 14 of 1970
(amended by Law No. 35 of 1999), the authority and duty of the judiciary is to settle
contentious lawsuits. Contentious lawsuits have the following characteristics: 1) The parties
are called the plaintiff and the defendant; 2) There is a case or dispute in the lawsuit; 3) There
are opponents or other parties who are dragged in this lawsuit, and 4) The problem raised is the
prosecution of rights to what is being disputed between a person or legal entity and another
person or legal entity.
Application Lawsuit
A lawsuit can be filed in the form of an application. The term Voluntair can be seen from
the explanation of Article 2 paragraph (1) of Law No. 14 of 1970 (amended by Law No. 35 of
1999), explaining that the settlement of any dispute that is submitted to the judiciary has an
understanding in which it is a settlement of the problem concerned with Voluntair jurisdiction
(Rambe, 2004).
The characteristics of the voluntary suit are: 1) The parties concerned are called the
applicant and the respondent; 2) This lawsuit and application is without dispute; 3) The
problem posed is of one-sided interest only; 4) No third party is drawn as an opponent.
A person who goes through a civil process, starting with the filing of a written suit, can
also be submitted orally and then rewritten on the basis of the request of the Chairman of the
Court to the Registrar. To further explain the form of a civil lawsuit, then in the Act and the
practice that occurs in the scope of the Court can be explained as follows:
a) Written Lawsuit: The preferred lawsuit is a written lawsuit, the provisions of a written
lawsuit are regulated in Article 118 paragraph 1 of the HIR which states that a civil
lawsuit at the first level is within the power of the state court, it is obligatory to include
a request letter signed by the plaintiff or his attorney. Regarding civil claims in the
first instance, it is the authority of the state court appointed according to the applicable
provisions in article 147, with a letter of application signed by the plaintiff submitted
to the head of the district court authorized in the jurisdiction where the plaintiff lives
(Rambe, 2004).
b) Verbal Lawsuit: Article 120 HIR/144 R.Bg explains that for the plaintiff who does
not have the ability or expertise in writing, the lawsuit filed can be made orally to the
Chief Justice, then the Chairperson of the Court summarizes it and records the
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146 Interdisciplinary Social Studies, 1(2), November 2021
contents of the lawsuit. However, in the R.Bg it states that the lawsuit is verbal, it is
not allowed to be represented or the person authorized by the plaintiff (Fauzan, 2005).
The purpose of being relaxed in filing a lawsuit orally, is expected to provide justice to
people who cannot write, when providing assistance to people who cannot write, the chairman
of the court is prohibited from deviating from the purpose of what is desired by the plaintiff
(Harahap, 2001).
To avoid things that are not desirable, the Judge or Court Officer who has been determined
by the Chairman of the Court to formulate a lawsuit that is submitted orally in the form of a
lawsuit, the formulation of a lawsuit can be by recording events and events in the area around
the claim requested by the plaintiff. After being formulated, the court employee reads out to
the plaintiff, if it is in accordance with the plaintiff's demands, the lawsuit is signed by the
judge or court employee who formulates the lawsuit.
CONCLUSION
The UUPA does not clearly explain what is meant by buying and selling land, but
agrarian law uses a system and legal principles. The customary law used is the customary law
that applies and is adapted nationally and follows modern developments. In essence, buying
and selling land is the transfer of land rights from the seller to the buyer, so that the buyer can
use the land according to its function. According to the UUPA, there are various types of land
rights that can be transferred, namely property rights, use rights and building rights.
In essence, buying and selling land is the transfer of land rights from the seller to the
buyer, so that the buyer can use the land according to its function. According to the UUPA,
there are various types of land rights that can be transferred, namely property rights, use rights
and building rights.
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