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Edunity
Volume 2 Number 10, October, 2023
p- ISSN 2963-3648- e-ISSN 2964-8653
Doi:
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ANALYSIS OF JUDGES' LEGAL CONSIDERATIONS ON THE
VALIDITY OF AUTHENTIC DEEDS MADE BY A NOTARY
Pratama Septiandi
1
, Amad Sudiro
2
Tarumanegara University, West Jakarta, Indonesia
Email: [email protected]
ABSTRACT
Abstract: The validity of the authentic deed made by a notary/ppat is questionable. Based on
this phenomenon, this study formulates the problem of how the validity of the authentic deed
of sale and purchase agreement is valid and how to analyze the considerations of judges who
do not accept lawsuits regarding the ratification of the authentic deed. The purpose of this study
is to determine the validity and legal considerations. This research is normative juridical or
research, this research uses Statute Approach and Analytical Approach. The data collection
technique used is library research. Data analysis in this study uses a qualitative method.
(deceased) and Soemadjoko are said to be legal (lawful) based on the Notary Deed of binding
sale and purchase, dated April 25, 1995 drawn up at the Notary Office of Liana Dewi Santoso,
S.H. The lawsuit was not accepted because the judge stated that there had not been a sale and
purchase between Mansyur Ali (deceased) and Soemadjoko. The binding sale and purchase of
land and buildings that occurred between Mansyur Ali (deceased) and Soemadjoko was said to
be legal (lawful) based on the Notary Deed of binding sale and purchase, date April 25, 1995
made at the Notary Office of Liana Dewi Santoso, S.H. In the consideration of the majlis, the
judge stated that the sale and purchase of land between the plaintiff and the defendant had not
been carried out in accordance with the provisions of the law to the competent authority.
Keywords: Binding Sale And Purchase, Deed, Notary
Introduction
The 1945 Constitution has determined and stated that the Unitary State of the Republic
of Indonesia is a state of law, so that an important obligation for the state is to guarantee
legal certainty, order and protection which is based on truth and justice. For this reason,
in living in society there is a need for provisions that are able to prove an event or legal
act, so that deeds play an important role in providing written evidence of the event. This
is the basis for rights or obligations in civil law. The role and function of law in Indonesia
is not easy when compared to developed countries because of the many limitations.
These limitations not only hinder the smooth running of the legal process in an orderly
and certain manner but also require approaches and thoughts that aim to balance every
existing interest.
Based on the above, it is necessary to have an institution and/or public official who has
the authority to make authentic deeds, in this case it is intended as a notarial institution.
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The notary institution is a social institution that emerged based on the need for
interaction between human beings in civil legal relations which requires evidence. In the
world of business, land, banking, social activities and others, the need for written
evidence is increasing in line with the many demands for legal certainty in social and
economic relations, both regionally, nationally and globally so that authentic deeds are
used as a tool. the strongest and most complete written evidence that can clearly
determine rights and obligations, guarantee legal certainty, and is expected to avoid
disputes even though these disputes cannot be avoided. In the dispute resolution
process, authentic deeds are able to make a real contribution to resolving cases cheaply
and quickly.
Every society needs a person (figure) whose information is reliable, can be trusted,
whose signature and seal (stamp) provide guarantees and strong evidence, an expert
who is impartial and an advisor who is without flaws (unscentedorunimpeachable), who
keeps his mouth shut and makes an agreement that can protect him in the days to come.
If an Advocate defends someone's rights when a difficulty arises, then a Notary must try
to prevent that difficulty from occurring. (Nurhidayanti et al., 2018)
Notaries as public officials have a central role in enforcing the law in Indonesia because
apart from a large number of Notaries, Notaries are known to be among the elite group
in Indonesia. Notaries as an elite group means that notaries are a scientific community
that sociologically, economically, politically, and psychologically is in a relatively higher
stratification among society in general (Diani & Agus, 2019). The main basis of a Notary
profession is trust and as an elite community, the professionals who are members of this
community bear a heavy mandate for the trust placed in them. The position of a Notary
as a functionary in society is still respected to this day.
A notary is usually considered an official from whom one can obtain reliable advice.
Everything that is written and established (constant) is true, it is a powerful document
maker in a legal process (Samad & Karyono, 2020). The position as a Notary is part of
service to the community which must be in line with the development of society in the
future. The speed, skill, and accuracy of Notary officials are not only based on a
formalistic viewpoint but must also be based on a professionalistic view point so that
the quality of Notary services truly provides positive results for the community. As a
Notary, it is natural to carry out his position with legal expertise based on a great sense
of responsibility that is full of respect for dignity and ethics. A Notary must be highly
dedicated, have a professional attitude, and uphold his honor and dignity by enforcing
the laws relating to his position. Notary and code of ethics (Prabawa, 2017).
Prior to the enactment of Law Number 30 of 2004, the position of Notary was regulated
in the Reglement op Het Notaris Ambt in Nederlands Indie (Stbl. 1860:3) as last amended
in the State Gazette of 1954 Number 101 Article 91 of the Notary Position Law stated that
the regulations it is no longer in accordance with legal developments and community
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needs. Law Number 30 of 2004 underwent changes resulting in Law Number 2 of 2014
concerning Amendments to Law Number 30 of 2004 concerning the Position of Notaries
(UUJN). In Law Number 30 of 2004 concerning the Position of Notaries in conjunction
with Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004
concerning the Position of Notaries (UUJN), it is regulated in detail about the general
positions held by Notaries, so it is hoped that An authentic deed made by or before a
Notary is able to guarantee certainty, order and legal protection. Considering that a
notarial deed is an authentic deed which is the strongest and most complete form of
written evidence, what is stated in the notarial deed must be accepted, unless the
interested party can prove the opposite satisfactorily before a court hearing. (Ma’ruf &
Wijaya, 2015)
Basically, an authentic deed contains formal truths in accordance with what the parties
have notified the Notary as a public official. However, we have an obligation to ensure
that what is contained in the Notarial deed is truly understood and in accordance with
the wishes of the parties, namely by reading it so that the content of the Notarial deed
becomes clear, as well as providing access to information, including access to statutory
regulations. related to the parties signing the deed. Thus, the parties can decide freely to
agree or disagree with the contents of the Notarial deed they will sign. (Nurwulan, 2018)
In practice, land rights sale and purchase agreements often begin with an authentic
Deed, namely a Sale and Purchase Agreement, because the 'clear and cash' requirements
for entering into a Sale and Purchase Deed cannot yet be fulfilled (Amborowati, 2020).
The clear terms require that the process of buying and selling land rights be carried out
before an official who has the authority to do so. Observing the provisions of Article 37
of Government Regulation Number 24 of 1997 concerning Land Registration, the official
appointed to make the deed of transfer of land rights, including the Sale and Purchase
Deed is the Land Deed Drafting Officer (hereinafter referred to as PPAT). (Nasution,
2023) Cash characteristics can be seen in the implementation of the Deed of Sale and
Purchase where the transfer of rights from the Seller coincides with the payment of the
land price from the Buyer and at this time the rights to the land have been transferred.
(Audina, 2022)
The purpose of holding a Deed of Sale and Purchase Agreement is to form an attachment
between the Seller and the Buyer which will then be followed up with a Deed of Sale
and Purchase. The essence of the Deed of Sale and Purchase Agreement is that it contains
the Seller's consensus to transfer ownership of the land to the Buyer followed by
payment from the Buyer to the Seller and sets a date for executing the Deed of Sale and
Purchase before the PPAT. The Deed of Sale and Purchase Agreement usually also
includes conditions as agreed by the parties concerned. In general, the Sale and Purchase
Agreement is set out in the form of a Deed of Sale and Purchase Agreement which is
drawn up and issued by a Notary, although it may actually be executed privately.
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The tendency to include a Binding Sale and Purchase Agreement into a Notarial Deed is
based on the consideration that there is a difference between a Deed of Binding Sale and
Purchase Agreement and a private agreement (Kusuma & SH, 2021). A deed made and
issued by a Notary is an authentic deed as intended in the provisions of Article 1868 of
the Civil Code which describes "an authentic deed is a deed in the form determined by
the Law, made by or in front of public officers who have the authority to do so in the
place where the deed is made." This type of deed is capable of providing perfect
evidentiary power according to the law and cannot be denied its truth by the parties, of
course, this is different from private agreements (Pramono, 2015).
Even though an authentic deed such as a sale and purchase agreement made by a notary
is perfect according to the law and its truth cannot be denied, what happens in the
community is that authentic deeds in this case the sale and purchase agreement can be
canceled and declared expired by the national land agency. One of the cases that
occurred was that the authentic deed of sale and purchase agreement made by notary
Liana Dewi Santosa dated April 25 1995 which explained the sale and purchase
agreement between Mr. Soemardjoko as the first party (seller) and Tuang Mansyur Ali
as the second party (buyer) was declared expired by the National Land Agency. This
incident occurred when the wife of the second party, where the second party had died,
tried to arrange or upgrade the certificate of building use rights owned by the first party
to property rights by attaching the sale and purchase agreement to the national land
agency.
As a result of not being able to change the name and upgrade the SHGB to SHM, the
wife of the deceased second party filed a lawsuit against the seller and the notary who
made the authentic deed of sale and purchase agreement with the court. Court decision
number 1420/pdt.g/2021/PN TNG decided not to accept the lawsuit filed by the plaintiff,
in this case, the wife of the deceased second party who was listed as the buyer in the
authentic deed of notary Liana Dewi Santoso. This phenomenon attracted the author to
examine the legal considerations of judges regarding the validity of authentic deeds of
sale and purchase agreements made by notaries.
As with the background of the problems and phenomena described above, the problem
can be formulated as follows:
1. What is the validity of the evidence of an authentic deed made by a Notary for the
transfer of land rights from the name of the seller (first party) to the buyer (second
party) whose land rights have not been transferred for 27 years?
2. What are the legal considerations of the judge who decided not to accept the lawsuit
in decision Number: 1420/PDT.G/2021/PN.TNG?
The aims of this research are:
1. To find out and analyze the juridical reasons for the validity of an authentic deed
made by a notary for the transfer of land rights from the name of the seller (first party)
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to the buyer (second party) whose land rights have not been transferred for 27 years.
2. To find out and analyze the legal considerations of the judge who decided not to
accept the lawsuit.
This research is expected to provide theoretical benefits in adding to library materials or
literature regarding the validity of Authentic Deeds Regarding Sale and Purchase
Agreements. Meanwhile, in practical terms, this research is expected to contribute to the
thinking of the community, especially practitioners who relate to authentic deeds of sale
and purchase agreements and the legal considerations of judges who do not accept
lawsuits. To support the analysis in writing this journal, theories related to the research
focus are needed.
Peter Mahmud Marzuki said that legal research is done to produce new arguments,
theories, or concepts as prescriptions for solving the problems faced. The legal theory
used as an analytical knife in this research is the legal protection theory. Justice, Theory
of Responsibility, and Theory of Legal Protection must see the stages, ie the legal view
is born from a legal provision and all legal regulations given by the community are
basically an agreement between members of the community and between individuals
and the government who are considered to represent the interests of the community.
Based on that, the researcher will present several theories related to the research theme
to be used as a knife of this analysis as follows Theory of Justice Ideal justice in
Aristotle's view is that all elements of society get an equal share of all things in nature.
Humans in their view are equal and have the same right to the ownership of an item
(material). According to John Rawls, freedom and equality are elements that become
the core of the theory of justice. Theory of responsibility One concept related to the
concept of legal obligation is the concept of legal responsibility. That a person is legally
responsible or a certain act or that he bears legal responsibility, the subject means that
he is responsible for a sanction in the case of the opposite act. The theory of
responsibility or legal responsibility is needed to be able to explain the Notary's
responsibilities related to his authority based on the UUJN which is in the field of civil
law. One of these powers is to create evidence that can provide legal certainty for the
parties, then become a delict or an act that must be held criminally accountable.
The theory of legal certainty includes several rules about what should be done. Norms
are the products and actions of humans deliberative. Laws containing general rules
serve as guidelines for individuals to behave in society, both in their relationships with
fellow individuals and in their relationships with society. These rules become limits
for society in burdening or taking action against individuals. The existence of these
rules and the implementation of these rules give rise to legal certainty. According to
Gustav Radbruch, the law must contain 3 (three) identity values, namely as follows:
The principle of legal certainty(legality). This principle is reviewed from a juridical
perspective, the principle of legal justice(righteousness). This principle is viewed from
a philosophical perspective, where justice is equal rights for all people before a court.
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The principle of legal benefit (sweatinessorefficiency or utility. One of the objectives of
law is legal certainty and legal benefits. Positivists place greater emphasis on legal
certainty, while Functionalists prioritize legal benefits, and it could be argued that one
of the goals of law is legal certainty and legal benefits. Positivists put more emphasis
on legal certainty, while Functionalists prioritize the benefits of the law, and it can be
argued that "the highest right, the highest injury, the highest law, the highest cross"
which means that harsh laws can hurt unless justice can help them. Thus, although
justice is not the only goal of law, the most substantive goal of law is justice. There are
more and more visions, missions, and goals that must be achieved by a process of
implementing law in the courts in this era of reform and transformation. Classically,
apart from achieving justice, the law also has the aim of creating legal certainty for
individuals and for society at large.
There are many other legal objectives that must be achieved in this era of reform and
transformation. In this case, the law must be able to harmonize the elements of justice,
elements of legal certainty, and other elements. Because, justice, legal certainty and other
elements often conflict with each other. Therefore, in legal science, the term "the highest
right, the highest injury” (the highest justice is the highest injustice). One example of a
sharp contradiction between elements of justice and elements of legal certainty is in
"expired" legal institutions. A criminal can no longer be charged before a judge if he has
not been arrested by law enforcement within a certain time limit. The Criminal Code
states that. In this case, legal prosecution against criminals is considered to have expired.
In circumstances like this, you can imagine how much it can hurt public justice, let alone
the justice of crime victims. In fact, what is the law pursuing if it has the heart to allow
criminals to continue wandering outside prison? What is pursued is nothing other than
the element of legal certainty, even though the cost is at the expense of the element of
justice. Conditions like this often occur in various existing legal institutions. Because if
the law is uncertain, then society will also be in trouble. There is often an expression that
the legal sector does not provide legal certainty for the community so that foreign
countries, foreigners and foreign investors are reluctant to enter or have contact with
Indonesia. Because, wouldn't legal uncertainty have an impact on business uncertainty
in Indonesia? As a result of the absence of this element of legal certainty, overall
Indonesian law becomes unpredictable (unpredictable). For example, if we have a civil
proceeding in district courts, it is difficult to predict the outcome. Often cases that have
quite strong evidence, but suddenly lose in court for reasons that are not clear, even for
reasons that are considered naive. On the other hand, there are often cases where a party
whose legal position and evidence are very weak, unexpectedly turns out to be won by
the court.
Research Method
In accordance with the main problem, the type of legal research carried out is normative
juridical research or research that analyzes the law, both written in books and laws
decided by judges through court processes. The approach is descriptive and analytical.
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The descriptive purpose here aims to collect systematic, factual, and accurate data on a
problem based on applicable laws regulations, and legal norms (Arfa & Marpaung,
2018).
Normative research uses several approaches including the Legislative Approach(Statute
Approach) and Analytical Approach. Normative legal research that uses a statutory
approach will be more accurate if research is used that describes how the notary is
responsible for the deed he or she makes according to the provisions of laws, regulations,
and the reality in practice of the object of research. The stages of normative juridical
analysis are: a). Formulating legal principles, both from social data and from written
positive legal data; b). Formulate legal definitions; c). Establishment of legal standards;
and D). Formulation of legal rules. (Purwati, 2020)
The data used in this research is divided into 3 (three), namely: a). Primary legal
materials, namely legal materials that are authoritative, meaning they have authority.
Primary legal materials consist of legislation, official records or minutes in making
legislation and judges decisions. namely the Civil Code (KUHPerdata), the Basic
Agrarian Law, Law Number 30 of 2004 as amended into Law Number 2 of 2014
concerning Notary Positions (UUJN), Law Number 48 of 2009 concerning Judicial Power
and Tangerang District Court Decision Number 1420/Pdt.G/2021/PN.Tng. ;b). Secondary
legal materials, namely all publications about law that are not text documents, legal
journals, and comments on court decisions. Tertiary legal materials, namely materials
that provide information about primary legal materials and secondary legal materials
used to support research. The materials used in this research were legal dictionaries and
encyclopedias.
The data collection technique used is library research (library research) namely to obtain
data by reviewing library materials or secondary data which includes primary legal
materials, and secondary legal materials which can be in the form of statutory
regulations, books, and other scientific works as well as tertiary legal materials, namely
in the form of dictionaries, magazines, newspapers, and scientific journals.
Data collection tools can be used by studying documents or library research. Document
study is the first step in any legal research (both normative and sociological) because
legal research always starts from normative premises. Document study for legal research
includes the study of legal materials consisting of primary legal materials, secondary
legal materials, and tertiary legal materials. Each legal material must be rechecked for
validity and reliability because this really determines the results of the research.
Research really requires useful data analysis to provide answers to the problems being
studied. Data analysis is the process of organizing and sorting data into categorical
patterns in a basic description so that themes can be found and working hypotheses can
be formulated as suggested by the data. Data analysis in this research uses qualitative
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methods. Research using qualitative methods starts from assumptions about reality or
social phenomena that are unique and complex. There is a certain regularity or pattern
in it, but it is full of variations (diversity) (Bungin, 2007). Qualitative research is a
research process to understand human or social phenomena by creating a
comprehensive and complex picture that can be presented in words, reporting detailed
views obtained from informant sources, and carried out in a natural setting (AK & ZA,
2015). A qualitative analysis essentially emphasizes the deductive method as the main
guide. Data from research results that have been collected during continuous data
collection in the field. Starting with a data clarification process to achieve consistency,
followed by the abstraction step of theoretical abstraction of field information, taking
into account producing statements that are very likely to be considered basic. Next,
conclusions are drawn using the deductive thinking method, namely a way of thinking
that starts from general things and then draws specific ones, using provisions based on
general knowledge, such as theories, postulates or principles in the form of propositions.
to draw conclusions about specific facts, to answer the problems that have been
formulated in this research.
Result And Discussion
Validity of Evidence of an Authentic Deed Made by a Notary for the Transfer of Land
Rights from the Name of the Seller (First Party) to the Buyer (Second Party) Whose
Land Rights Have Not Been Transferred for 27 Years
This research uses the casuistic approach method in Decision Number:
1420/PDT.G/2021/PN.TNG. In this decision, the case is explained which is the
chronology of the lawsuit against the notary as a public official who made the authentic
deed in the form of a sale and purchase agreement. In the decision, it is explained where
the problem sits The plaintiff with a lawsuit letter dated 31 December 2021 which was
received and registered at the Registrar's Office of the Tangerang District Court on 31
December 2021 in Register Number 1420/Pdt.G/2021/PN Tng, has filed the following
lawsuit: (Nursolih, 2019)
That the Plaintiff is the wife of the deceased Mansur Ali, based on data evidence from
Family Card (KK) No: 3671090609070943, Death Certificate No: 62 /CBB /III / 96, and
Power of Attorney for Inheritance signed by the head of the Cibodas Baru subdistrict,
dated 01 October 2021 number: 593/ 90 / wrs / X / 2021. (Exhibit. P. 1).
Whereas on April 25 1995, (the late) Mansyur Ali entered into a Sale and Purchase
agreement with Soemardjoko at the office of Notary Mrs. LIANA DEWI SANTOSO as
Notary and PPAT, whose address is Ki Samaun No. 195 A, which was signed by Notary
Nyonya Liana Dewi Santoso, SH. April 25 1995. (exhibit P.2).
That at the time of the Sale and Purchase agreement the Seller handed over the Building
Use Rights Certificate number 6618, in the name of the SOEMARDJOKO rights holder,
to the Buyer (the late Mansyur Ali). (Exhibit P3).
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When the Plaintiff wanted to submit an application to change the name of the Building
Use Rights certificate number: 6618 in the name of Soemardjoko to the Plaintiff's
Ownership, it was rejected by the National Land Agency on the grounds that the Deed
of Sale and Purchase Agreement had expired.
Meanwhile, in the Sale and Purchase agreement dated April 25 1995, Article 6 states:
This agreement will not end because one of the parties dies, but is hereditary and all the
rights and obligations of the party who dies based on this letter, become rights and
obligations (The) heirs of the Party who died.
That the National Land Agency is not based on the Deed of Sale and Purchase
Agreement between: Soemardjoko as the seller and Mansyur Ali as the buyer at the
Notary's Office and the PPAT which was made on April 25 1995 is not valid because it
has expired, on the grounds that the Deed of Sale and Purchase Agreement is already 26
years old.
That since the Sale and Purchase agreement on April 25 1995 until now (2021) for 26
years the land and buildings have still been owned by the Plaintiff and his sons and
daughters/heirs. (Exhibit P4)
Based on the existing case, the plaintiff filed a lawsuit and request for a decision to the
Tangerang District Court on several points, including:
1. Granted the Plaintiff's lawsuit in its entirety.
2. Declare the Sale and Purchase Agreement made by Notary Liana Dewi Santoso, S.H.
On April 25 1995 it was legal, between the Seller in the name of Soemardjoko, and the
Buyer in the name of Mansyur Ali (deceased), in accordance with Article 6 of the
Notarial Deed.
3. That the Building Use Rights Certificate number 6618 which was signed by the Head
of the Land Office on 10 - 02 - 1995, in the name of the holder of the Soemardjoko
Rights is valid and can be transferred / renamed from the holder of the Soemardjoko
Rights to the Plaintiff (Hj. Komariah)
4. Ordered the Tangerang City National Land Agency to upgrade its rights from
Building Rights number 6618 in the name of Soemardjoko Rights holders, to Hj
Ownership Rights. Komariah (Plaintiff).
5. Sentence to the Defendant to pay the court costs. Or if the Tangerang District Court
has a different opinion, request a decision that is as fair as possible
The validity of the authentic deed of sale and purchase agreement made by a notary is
questionable because the statement by the National Land Agency of Tenerang City states
that the agreement of sale and purchase has expired. The plaintiff, who is the heir of
Mansyur Ali (deceased), who is the second party, in this case, the buyer as stated in the
deed of sale and purchase agreement of notary Liana Dewi Santoso on April 25 1995,
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cannot process the return of the SHGB name number: 6618 in the name of Soemardjoko
who is a party. the seller is the first party and is stated in the deed.
On the basis of Article 6 contained in the deed of sale and purchase agreement between
the purchaser Mansyur Ali (deceased) which states that this Agreement will not end
because one of the parties dies, but is hereditary and all the rights and obligations of the
Party who dies are based on this letter, become the rights and obligations of the heirs of
the party who died, then the plaintiff upgraded the SHGB to SHM at the national land
agency office, in the application for the increase the national land agency stated that the
deed of sale and purchase agreement had expired, the BPN statement became The reason
why HJ Komariah, the heir of the buying party, filed a lawsuit against the seller and the
notary who made the authentic deed of sale and purchase agreement.
In his lawsuit, the plaintiff asked the court to declare the sale and purchase agreement
made by Notary Liana Dewi Santoso, S.H. On April 25 1995 it became legal between the
Seller in the name of Soemardjoko, and the Buyer in the name of Mansyur Ali (deceased),
so that SHG number 6618 in the name of the Soemardjoko Rights holder can be increased
and transferred to the buyer's heirs according to an authentic deed made by notary Liana
Dewi. Santoso SH. The authentic deed of sale and purchase agreement is the basis of the
agreement between the buyer and the seller, the authentic deed being one of the deeds
before the sale and purchase deed which is the basis for making a certificate or the basis
for transferring rights to land and buildings from the seller to the buyer.
In practice, the Sale and Purchase Agreement entered into before a Notary is known as
the Deed of Sale and Purchase Agreement. In reality, the existence of a Deed of Sale and
Purchase Agreement is desired by the parties because the transfer of rights to the land
object of sale and purchase from the Seller to the Buyer is not yet possible because the
documents relating to the land are still incomplete or the land value has not been paid
in full by the Buyer. The parties concerned hope that the land and the value of the land
being traded will definitely be 'sold and bought' by them. In connection with this, a Deed
of Sale and Purchase Agreement was drawn up in order to provide protection for the
'rights and obligations' of the Seller and Buyer. (Esterina & Lukman, 2022)
Sale and Purchase Binding Agreement as "an agreement between the seller and the buyer
before the sale and purchase is carried out because there are elements that must be
fulfilled first for the sale and purchase to be carried out, including the fact that the
certificate does not yet exist because it is still in process, the price has not yet been paid."
(Rahmani & Octarina, 2020) So the Sale and Purchase Agreement is an agreement with
conditions that are formed prior to the implementation of the main agreement or core
agreement. The essence of the Sale and Purchase Agreement is an obligatory agreement
that is formed before the main agreement is born. The essence of the Sale and Purchase
Agreement is an initial agreement which generally contains commitments from both
parties, namely the Seller and the Buyer, which includes the rules when the actual terms
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of the sale and purchase transaction have been fulfilled.(Hasanah, 2021)
In principle, the
making of a Sale and Purchase Agreement is based on the idea that the provisions
regarding land rights to the object of sale and purchase must take the form of rights to
the land belonging to the Seller as indicated by the existence of a land certificate or other
official evidence regarding the land in question and that the land of the object of sale and
purchase is not subject to dispute. with other individuals. Apart from that, the buyer
must also comply with the requirements to quickly pay off the price of the land being
traded. If this requirement is not fulfilled, then the implementation of the Deed of Sale
and Purchase before the PPAT may not be carried out considering that everything
related to the signing of the Deed of Sale and Purchase has not been fulfilled.
The purpose of creating the Sales and Purchase Binding Agreement Act is to provide
certainty for each party, so that the Seller does not transfer the rights to the land to
another party and the Buyer does not limit his intention to purchase land from the Seller,
where the Sale and Purchase Binding Agreement Act is then continued with the Act Buy
and sell in front of PPAT.(JONATHAN, 2022)
As for the reasons that often lead Sellers
and Buyers to bind themselves in the Sales and Purchase Binding Agreement Act, among
others:
1. “Land title certificates are in the process of being issued by the local National Land
Agency Office;
2. The object has not been paid in full by the prospective Buyer;
3. The object of the sale and purchase agreement will be transferred to another party;
4. So that in the future the parties do not break the agreement;
5. Prospective Buyers do not cancel PPJB unilaterally;
6. Postponing income tax payments;
7. Don't want to pay BPHTB."
The Sale and Purchase Agreement is an agreement, therefore it is mandatory to comply
with the terms and rules that formulate the terms of the agreement, especially the
requirements that must be fulfilled, along with their juridical consequences. Explicitly,
the obligation to fulfill the requirements regarding the validity of an agreement has been
emphasized in the provisions of Article 1320 of the Civil Code which states "for the
validity of an agreement four conditions are required: the agreement of those who bind
themselves, the ability to make an agreement, a certain thing, a reason that lawful.”
Terms of agreement and terms of skill are categorized as subjective terms, while terms
of a particular thing and terms of a halal cause are classified as objective terms. The four
conditions above are the standard for determining the validity of agreements entered
into by interested parties. The juridical consequence if the subjective conditions are not
fulfilled or the agreement contradicts the subjective conditions is that the 'agreement can
be cancelled.' Meanwhile the juridical consequence if the objective conditions are not
fulfilled or the agreement contradicts the objective conditions is that it makes the
'agreement null and void.'
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Pratama Septiandi, Amad Sudiro
In the authentic deed of sale and purchase agreement that occurred between
Soemardjoko as the seller and Mansyur Ali as the buyer, both parties have agreed to
enter into a sale and purchase agreement before a notary/ppat Liana Dewi Santoso. In
article three of the sale and purchase agreement, it is explained that the sale and purchase
will be carried out and accepted at a price of Rp. 15,000,000 (fifteen million rupiah), in
article 3 it is explained that the amount of money received by the first party from the
second party at the time of signing this letter, and this letter also acts as a valid sign of
receipt (receipt). Based on the explanation of article 3 in the sale and purchase agreement
deed, it is clear that a sale and purchase transaction has occurred between the seller and
the buyer, which means that a binding agreement has occurred in accordance with
Article 1320 of the Civil Code which states "for the validity of an agreement, four
conditions are required: the agreement of those who bind themselves, the ability to make
an obligation, a certain thing, a lawful cause. With the existence of this article where a
payment transaction has occurred, it is clear that both parties agree to bind themselves
in a sale and purchase agreement.
The legal act of buying and selling land rights with a real sale and purchase agreement
with a juridical handover in the form of making a deed of transfer of name by the Head
of the Land Registration Office for the land being promised as an absolute condition of
the land sale and purchase agreement in accordance with the provisions of Article 1457
to Article 1540 of the Civil Code . The binding sale and purchase agreement (PPJB) of
land rights is intended to provide legal certainty to parties carrying out legal acts of sale
and purchase of land rights by always referring to or being bound by the provisions of
laws and regulations in the land sector such as the 1945 Constitution of the Republic of
Indonesia, Civil Code, Republic of Indonesia Law no. 5 of 1960 concerning Basic
Regulations on Agrarian Principles and several government regulations that support the
implementation of this law.
The deed contains provisions that the agreement remains valid and can be continued
even if one of the parties dies before the deed of sale and purchase is executed, which
applies between the surviving party and the heirs of the deceased party, or between
fellow heirs if both party has died. Then the land was handed over to the buyer along
with SHGB SHGB number: 6618 in the name of Soemardjoko after the buying party paid
Rp. 15,000,000, - to the seller and since the signing of the deed, the sale and purchase of
rights has occurred. Because the transaction was carried out in clear cash and in cash and
fulfilled the conditions for the sale and purchase of land rights, the sale and purchase
agreement should be declared legally legal.
The basis for the application of Republic of Indonesia Law no. 5 of 1960 concerning Basic
Regulations on Agrarian Principles is the provisions of Article 19 PP No. 10 of 1961
which has become Article 37 paragraph (1) PP No. 24 of 1997 in conjunction with Article
2 of the Head of BPN Regulation Number 7 of 2007 determines that every agreement
involving land rights, whether in the form of transferring land rights, borrowing money
[Analysis of Judges' Legal Considerations on the Validity of
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with land rights as collateral, granting new rights to land must be based on a deed made
in front of PPAT or Notary (HS & SH, 2021). The transfer of land rights can be said to be
legal (legitimate) and can be registered as a change of name if the PPAT as a public
official witnesses and records all legal actions in making the sale and purchase deed, so
that with the PPAT deed it can give a new status based on the request for change of name
that has been requested by the party. who receives the transfer of rights (Larasati &
Raffles, 2020). There is a requirement that the deed of sale and purchase of land rights
must be made before the PPAT due to the legality (validity) of the agreements related to
the sale and purchase of land rights.
Regarding the formal requirement that the sale and purchase of land rights must be
proven by the existence of a PPAT deed, it has been regulated in the provisions of Article
37 paragraph (1) PP No. 24 of 1997. However, it is not absolutely necessary to prove it
with a PPAT deed, in accordance with the provisions of Article 37 paragraph (2) PP No.
24 of 1997, the Head of the Regency/or City Land Office can register the transfer of land
rights even without a PPAT deed. There is a basis for a sale and purchase deed made by
PPAT, so at that time there is a transfer of land rights from the right holder as a seller to
another party as a buyer, then the sale and purchase activity must be registered with the
local Regency/or City Land Office. Thus, the PPJB on land rights that occurred between
Mansyur Ali (deceased) and Soemadjoko is said to be legal (legitimate) based on the
existence of a Notarial Deed of sale and purchase agreement, dated 25 April 1995, made
at the Notary Office of Liana Dewi Santoso, S.H.
Legal Considerations of the Judge Who Decided Not to Accept the Lawsuit in
Decision NUMBER: 1420/PDT.G/2021/PN.TNG
The sale and purchase binding deed that occurred between Mansyur Ali (deceased) and
Soemardjoko was a sale and purchase binding deed made and witnessed by notary/PPAt
Liana Dewi Santoso on April 25 1995, so it can be said that the sale and purchase binding
deed is legally valid in accordance with the Basic Laws. the legal implementation of
Republic of Indonesia Law no. 5 of 1960 concerning Basic Regulations on Agrarian
Principles is the provisions of Article 19 PP No. 10 of 1961 which has become Article 37
paragraph (1) PP No. 24 of 1997 in conjunction with Article 2 of the Head of BPN
Regulation Number 7 of 2007 determines that every agreement involving land rights,
whether in the form of transferring land rights, borrowing money with land rights as
collateral, granting new rights to land must be based on a deed made in front of PPAT
or Notary.
However, in the petition for HJ Komariah's lawsuit as the heir of Masyur Ali stating the
sale and purchase agreement made by Notary Liana Dewi Santoso, S.H. On April 25
1995 it was legal, between the Seller in the name of Soemardjoko, and the Buyer in the
name of Mansyur Ali (deceased), in accordance with Article 6 of the Notarial Deed, the
panel of judges in their decision stated that they did not accept the plaintiff's claim. This
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Pratama Septiandi, Amad Sudiro
has become one of the focuses of research regarding the judge's considerations in
deciding not to accept the lawsuit.
In his decision, the judge considered that the main issue in the Plaintiff's lawsuit was the
ratification of the sale and purchase agreement made by Notary Liana Dewi Santoso,
S.H. On April 25, 1995; Considering, that based on evidence P-2 in the form of a Deed of
Sale and Purchase Agreement dated April 25 1995 which was signed by Mrs. Liana Dewi
Santoso, S.H., linked to Exhibit P-3, it turned out that Mansyur Ali and Soemardjoko had
entered into a Sale and Purchase Agreement in the presence of Mrs. Liana Dewi Santoso,
S.H., Notary and PPAT in Tangerang.
In these considerations, the panel of judges stated that the evidence presented by the
defendant stated that Masyur Ali and Soemadjoko had entered into a sale and purchase
agreement before notary/ppat Liana Dewi Santoso SH located in Tangerang. So,
according to the researcher's analysis, it can be said that the panel of judges approved
the existence of a sale and purchase agreement between Mansyur Ali and Soemardjoko
before an official who has the authority to make a sale and purchase agreement, namely
a notary/pat, so that the agreement has legal certainty between both parties.
Furthermore, in the judge's consideration which reads Considering, that the Plaintiff's
lawsuit is regarding the Ratification of the Sale and Purchase Agreement made by
Notary Liana Dewi Santoso, S.H. On April 25 1995 after the Panel of Judges had read
and studied the Plaintiff's lawsuit, in the posita or fundamentum of the lawsuit, the
Plaintiff did not outline and explain the legal basis and incidents or events (facts)
underlying the sale and purchase of the land and buildings.
In these considerations, the panel of judges explained that the plaintiff, in this case the
heirs of the buyer, did not describe and explain the legal basis, incidents and incidents
(facts) underlying the sale and purchase of land and buildings between Mansyur Ali as
the buyer and Soemardjoko as the seller. According to the researcher's analysis, the
judge's consideration stated that this was correct because the plaintiff did not attach
evidence in the form of a purchase receipt which is strong evidence, the plaintiff only
attached evidence in the form of a sale and purchase agreement deed, and the SHGB was
in the name of the seller without a transaction receipt which was the basis for that. the
sale and purchase agreement has been fulfilled by the plaintiff. As is the theory
regarding the sale and purchase binding deed according to Subekti who defines the Sale
and Purchase Agreement as "an agreement between the seller and the buyer before the
sale and purchase is carried out because there are elements that must be fulfilled first in
order for the sale and purchase to be carried out, including that the certificate does not
yet exist because still in process, price settlement has not yet occurred.
The judge's considerations which stated that the Plaintiff did not describe and explain
the legal basis, incidents and incidents (facts) underlying the sale and purchase of land
[Analysis of Judges' Legal Considerations on the Validity of
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were strengthened by the statements of the witnesses submitted by the Plaintiff which,
among other things, explained that the witnesses presented by the Plaintiff did not know
about the event of the sale. The witness only knew about the sale and purchase between
Mansyur Ali and Soemardjoko from the Plaintiff's story.
With the consideration that the plaintiff did not describe and explain the legal basis,
incidents and events (facts) underlying the sale and purchase of land as well as the
testimony of witnesses who did not know the event or facts of the sale and purchase
between Masyur Ali and Soemardjoko, the panel of judges in the following
considerations was correct in stating that sell The purchase of land between the Plaintiff
and the Defendant has not been carried out in accordance with legal provisions with the
authorized officials, therefore the Plaintiff's claim is formally flawed therefore the
Plaintiff's claim is declared inadmissible (Declared Inadmissible).
According to the researcher's analysis, the panel of judges could not accept the plaintiff's
claim, it was correct, the evidence and witnesses did not have legal force to provide a
strong reason for the panel of judges to grant the plaintiff's request. In the consideration
of the panel of judges, it was stated that the sale and purchase of land between the
plaintiff and the defendant had not been carried out in accordance with the legal
provisions to the authorized officials. According to the researchers, what is meant by
this had not been carried out in accordance with the legal provisions to the authorized
officials was that the deed of sale and purchase agreement should be returned and
upgraded to a deed of sale and purchase to the notary. /ppat provided that all points or
conditions of the agreement contained in the sale and purchase agreement have been
fulfilled by the buyer and seller. or it could be said that the consideration of the panel of
judges states that the evidence in the form of a sale and purchase binding deed does not
yet constitute a real sale and purchase agreement, in accordance with the provisions of
Article 1457 to Article 1540 of the Civil Code that the legal act of buying and selling land
rights with the existence of a real sale and purchase agreement is Juridical handover in
the form of making a transfer of name deed by the Head of the Land Registration Office
for the land being promised as an absolute condition of the land sale and purchase
agreement.
Conclusion
Based on the analysis in the discussion, the conclusions of this research include:
Regarding the formal requirement that the sale and purchase of land rights must be
proven by the PPAT deed has been regulated in the provisions of Article 37 paragraph
(1) PP No. 24 of 1997 so that the authentic deed binding the sale and purchase of land
and buildings between Mansyur Ali (deceased) and Soemadjoko is said to be legal (legal)
based on the existence of the Notary Deed binding the sale and purchase, dated April
25, 1995, which was made at the Notary Office of Liana Dewi Santoso, SH
Vol. 2, No. 10, 2023
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Pratama Septiandi, Amad Sudiro
Legal considerations of the judge who did not accept the lawsuit regarding the
ratification of the sale and purchase agreement between Mansyur Ali (deceased) and
Soemadjoko. In the consideration of the panel of judges, it was stated that the sale and
purchase of land between the plaintiff and the defendant had not been carried out in
accordance with the legal provisions to the authorized official, the intention had not been
carried out in accordance with the legal provisions to the authorized official. is that the
deed of sale and purchase agreement should be returned and upgraded to a deed of sale
and purchase to the notary/ppat provided that all the points or conditions of the
agreement contained in the agreement of sale and purchase have been fulfilled by both
the buyer and the seller. or it could be said that the consideration of the panel of judges
states that the evidence in the form of a sale and purchase binding deed does not yet
constitute a real sale and purchase agreement, in accordance with the provisions of
Article 1457 to Article 1540 of the Civil Code that the legal act of buying and selling land
rights with the existence of a real sale and purchase agreement is Juridical handover in
the form of making a transfer of name deed by the Head of the Land Registration Office
for the land being promised as an absolute condition of the land sale and purchase
agreement.
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