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Senin, 19 September 2011
Rabu, 05 Agustus 2009
Indonesia Fiducia Law
Indonesian Security Law – Fiducia
Law No. 42 of 1999 regarding Fiducia Interest (“Fiducia Law”) brings Indonesia to the new era of security law. This is due to the fact that after years of implementing this kind of security, to be frank there is no clear formal regulation that regulates this kind of practice. Before the enactment of Fiducia Law, this practice was based on Old Dutch Jurisprudence the-so-called Arrest Hoge Raad “Bierbrouwerij- Arrest” dated 25 January 1929.
1. Background
According to Indonesian law, every creditor has a general blanket security as provided by Article 1131 Indonesian Civil Code (“ICC”). Under Article 1131 ICC, a creditor has the security over all goods belongs to the debtor. This kind of security is provided by the law, thus by the operation of law (every) Creditor automatically enjoy this kind of right, that is why we called it a general provision of security. General provision of security applies to all creditors, thus there is opportunity that the amount of the goods is not sufficient compare to the amount of the debt. In order to avoid these circumstances, the Creditor wishes to have a special security that attached directly to the goods and will not be contested to the other creditor.
Basically, Indonesian security law recognizes two kinds of securities, the first is security in-rem and security in-personam. In-rem rights give the holder of security rights directly to the goods and do not consider who currently posses the goods. On the other hand, the right in rem which is created by contract only gives security rights that might only be exercised toward the contracting party. Therefore, basically we may conclude that the in-rem rights is with regard to legal relationship between the holder of such rights to the goods, and in-personam rights is legal relationship between the contracting party.
Before the enactment of Fiducia Law, ICC only provides the Gadai/pledge as the instrument of security to any movable goods. In this article, in order not to make any ambiguities movables goods shall means any “ordinary movable goods” and not including the registered movable goods (ie. registered vessel).
The need to have Fiducia (Fiducire Eigendomsoeverdracht) as one of the security interest arise because there is provision in Article 1152 (2) of Indonesia Civil Code (ICC) that require goods under the pledge shall not under the possession of pledgor (the one who deposits property as a pledge).
The requirement to transfer the goods is also implies from the requirement as stipulated in Article 1977 (1) ICC. According to Article 1977(1) ICC, every third party that has a good faith can assume that everyone that posses a good is the owner to such good. If such third party buys such good and the seller transfer the ownership of such good to such third party, such the third party now become a legitimate owner of such good. Thus, for the sake of creditor’s security it is highly important to transfer the possession of the good to the pledgor. Moreover, the pledge will be deemed terminate if the goods under the pledge after obtaining approval from pledgor being possessed by the pledge again. Such requirements create difficulties to the pledgor and also to the pledgee. That is why the government enacted the Fiducia Law in order to avoid the difficulties among the parties.
2. The Basic of Fiducia
Fiducia basically is a transfer of ownership for security purposes (fiduciare eigendomsoverdracht tot zekerheid). The transfer of ownership is based on a good faith with a promise that the goods is still under the possession of debtor. The transfer of ownership to the goods as an object of fiducia can be conducted using Constitutum Possessorium/verklaring van houderschap method. In this method of transfer, the Fiducia grantor will continue posses the goods under Fiducia for the sake of Fiducia holder even if he already transferred the ownership of such good. In this case, such transfer of ownership does not actually transfer the title of ownership per se, but merely as a security.
There are three phases when we want to enter into Fiducia creation:
1. The Parties enter into a loan agreement. Fiducia interest basically has the accessory nature typical of the accessory nature of pledge and hypothec. This means that the creation and termination of Fiducia is attached to and dependent on the existence of the main agreement.
2. The parties then enter into the proprietary agreement/deed (zakelijk overeenkomst) between the grantor and grantee of Fiducia on the transfer of secured interest. Such agreement should be made using a notarial deed and should include at least the following information:
- Date of the Deed;
- Identity of grantor and grantee;
- The data of main agreement (usually a loan agreement);
- The description about goods that will become the object of Fiducia interest;
- The value of security;
- the value of Fiducia interest.
3. Registration of such Fiducia Deed to the Fiducia Office. This is one of the most important phases when we want to enter into Fiducia creation because the date of registration in the Fiducia Office is date of inception date. The provision concerning the inception date is subject to Article 613 ICC regarding the cessie (assignment) of the account receivables and other intangible properties. Under the Article 613 ICC, the creditor shall make a notice to the debtor about such assignment.
Fiducia is a security-in-rem, the holder of Fiducia has a preferred right to the goods compare to the other creditor. Even in the bankruptcy process, the object of Fiducia is not included the bankruptcy estate (boedel failiet). The holder of Fiducia may put the object in public sale and receive all the monies from such public sale without any necessity to divide the monies to the other creditor. The proceeds derived from such public sale is applied firstly for the repayment to the Fiducia holder.
The Fiducia has the accessory in nature which implies that the creation and termination of Fiducia as a security agreement is attached to and dependent on the existence of main agreement (loan agreement).
3. Fiducia Security
After the enactment of Fiducia Law, a Fiducia deed shall be filled for registration by the Fiducia holder at the Fiducia office. Such Fiducia deed shall at least include the following data; the main loan agreement, description of the goods that will become the object of Fiducia, the amount of security and the value of the object. Fiducia inception date is the date on which Fiducia is registered in the Fiducia office. Such registration is very important especially because the secured object is commonly movable goods. The other factor is because the provision as stipulated under Article 1977 ICC as mentioned above. With the registration system, the Fiducia Law fulfill the principle of publication, one significant element of right-in-rem (zakelijk zekerheid) that has the “droid de suit” title thus the Fiducia security will follow the goods no matter whoever possess the goods. The confirmation wipes out doubts over the opinion that fiducia interest does not create a proprietary right, merely an obligatory agreement which creates personal (peroonlijk) right for the creditor.
4. The Execution of Fiducia Interest
The law provides methods that can be used by creditor in case the debtor is in the default position, execution of Fiducia interest can be done through the following methods:
a. Enforcement of the executorial title under the Fiducia Certificate. This process in theory can be done without any involvement from the court because the Fiducia certificate has the following headings “Demi Keadilan Berdasarkan Ketuhanan yang Maha Esa”/ For the Sake of Justice in the Name of God the Almighty. This title is an executorial title comparable to a final and binding court decision.
b. Directly sale the Fiducia interest through public sale. In addition to the executorial title, the Fiducia Law provides the so-called parate executie, whereby the creditor is entitled to sell the secured goods on his own authority in a public auction.
c. Private sales. Private sales can be conducted if there is agreement between the parties if both parties can have better price using such private sales. The conditions should be met before the parties conducting such private sales are as follows (i) After 1 month period from the date of announcement from the Fiducia Grantor and/or Fiducia holder to the “parties concerned” (ii) announcement in at least two news papers with circulation in the such “area concerned”. There is no further explanation in Fiducia Law about the meaning of “parties concerned” or “area concerned”. Unless stipulated otherwise by the parties, Fiducia Interest shall include not only the Fiducia interest but also including insurance claim in case there is insurance proceeds payable from the secured properties.
Law No. 42 of 1999 regarding Fiducia Interest (“Fiducia Law”) brings Indonesia to the new era of security law. This is due to the fact that after years of implementing this kind of security, to be frank there is no clear formal regulation that regulates this kind of practice. Before the enactment of Fiducia Law, this practice was based on Old Dutch Jurisprudence the-so-called Arrest Hoge Raad “Bierbrouwerij- Arrest” dated 25 January 1929.
1. Background
According to Indonesian law, every creditor has a general blanket security as provided by Article 1131 Indonesian Civil Code (“ICC”). Under Article 1131 ICC, a creditor has the security over all goods belongs to the debtor. This kind of security is provided by the law, thus by the operation of law (every) Creditor automatically enjoy this kind of right, that is why we called it a general provision of security. General provision of security applies to all creditors, thus there is opportunity that the amount of the goods is not sufficient compare to the amount of the debt. In order to avoid these circumstances, the Creditor wishes to have a special security that attached directly to the goods and will not be contested to the other creditor.
Basically, Indonesian security law recognizes two kinds of securities, the first is security in-rem and security in-personam. In-rem rights give the holder of security rights directly to the goods and do not consider who currently posses the goods. On the other hand, the right in rem which is created by contract only gives security rights that might only be exercised toward the contracting party. Therefore, basically we may conclude that the in-rem rights is with regard to legal relationship between the holder of such rights to the goods, and in-personam rights is legal relationship between the contracting party.
Before the enactment of Fiducia Law, ICC only provides the Gadai/pledge as the instrument of security to any movable goods. In this article, in order not to make any ambiguities movables goods shall means any “ordinary movable goods” and not including the registered movable goods (ie. registered vessel).
The need to have Fiducia (Fiducire Eigendomsoeverdracht) as one of the security interest arise because there is provision in Article 1152 (2) of Indonesia Civil Code (ICC) that require goods under the pledge shall not under the possession of pledgor (the one who deposits property as a pledge).
The requirement to transfer the goods is also implies from the requirement as stipulated in Article 1977 (1) ICC. According to Article 1977(1) ICC, every third party that has a good faith can assume that everyone that posses a good is the owner to such good. If such third party buys such good and the seller transfer the ownership of such good to such third party, such the third party now become a legitimate owner of such good. Thus, for the sake of creditor’s security it is highly important to transfer the possession of the good to the pledgor. Moreover, the pledge will be deemed terminate if the goods under the pledge after obtaining approval from pledgor being possessed by the pledge again. Such requirements create difficulties to the pledgor and also to the pledgee. That is why the government enacted the Fiducia Law in order to avoid the difficulties among the parties.
2. The Basic of Fiducia
Fiducia basically is a transfer of ownership for security purposes (fiduciare eigendomsoverdracht tot zekerheid). The transfer of ownership is based on a good faith with a promise that the goods is still under the possession of debtor. The transfer of ownership to the goods as an object of fiducia can be conducted using Constitutum Possessorium/verklaring van houderschap method. In this method of transfer, the Fiducia grantor will continue posses the goods under Fiducia for the sake of Fiducia holder even if he already transferred the ownership of such good. In this case, such transfer of ownership does not actually transfer the title of ownership per se, but merely as a security.
There are three phases when we want to enter into Fiducia creation:
1. The Parties enter into a loan agreement. Fiducia interest basically has the accessory nature typical of the accessory nature of pledge and hypothec. This means that the creation and termination of Fiducia is attached to and dependent on the existence of the main agreement.
2. The parties then enter into the proprietary agreement/deed (zakelijk overeenkomst) between the grantor and grantee of Fiducia on the transfer of secured interest. Such agreement should be made using a notarial deed and should include at least the following information:
- Date of the Deed;
- Identity of grantor and grantee;
- The data of main agreement (usually a loan agreement);
- The description about goods that will become the object of Fiducia interest;
- The value of security;
- the value of Fiducia interest.
3. Registration of such Fiducia Deed to the Fiducia Office. This is one of the most important phases when we want to enter into Fiducia creation because the date of registration in the Fiducia Office is date of inception date. The provision concerning the inception date is subject to Article 613 ICC regarding the cessie (assignment) of the account receivables and other intangible properties. Under the Article 613 ICC, the creditor shall make a notice to the debtor about such assignment.
Fiducia is a security-in-rem, the holder of Fiducia has a preferred right to the goods compare to the other creditor. Even in the bankruptcy process, the object of Fiducia is not included the bankruptcy estate (boedel failiet). The holder of Fiducia may put the object in public sale and receive all the monies from such public sale without any necessity to divide the monies to the other creditor. The proceeds derived from such public sale is applied firstly for the repayment to the Fiducia holder.
The Fiducia has the accessory in nature which implies that the creation and termination of Fiducia as a security agreement is attached to and dependent on the existence of main agreement (loan agreement).
3. Fiducia Security
After the enactment of Fiducia Law, a Fiducia deed shall be filled for registration by the Fiducia holder at the Fiducia office. Such Fiducia deed shall at least include the following data; the main loan agreement, description of the goods that will become the object of Fiducia, the amount of security and the value of the object. Fiducia inception date is the date on which Fiducia is registered in the Fiducia office. Such registration is very important especially because the secured object is commonly movable goods. The other factor is because the provision as stipulated under Article 1977 ICC as mentioned above. With the registration system, the Fiducia Law fulfill the principle of publication, one significant element of right-in-rem (zakelijk zekerheid) that has the “droid de suit” title thus the Fiducia security will follow the goods no matter whoever possess the goods. The confirmation wipes out doubts over the opinion that fiducia interest does not create a proprietary right, merely an obligatory agreement which creates personal (peroonlijk) right for the creditor.
4. The Execution of Fiducia Interest
The law provides methods that can be used by creditor in case the debtor is in the default position, execution of Fiducia interest can be done through the following methods:
a. Enforcement of the executorial title under the Fiducia Certificate. This process in theory can be done without any involvement from the court because the Fiducia certificate has the following headings “Demi Keadilan Berdasarkan Ketuhanan yang Maha Esa”/ For the Sake of Justice in the Name of God the Almighty. This title is an executorial title comparable to a final and binding court decision.
b. Directly sale the Fiducia interest through public sale. In addition to the executorial title, the Fiducia Law provides the so-called parate executie, whereby the creditor is entitled to sell the secured goods on his own authority in a public auction.
c. Private sales. Private sales can be conducted if there is agreement between the parties if both parties can have better price using such private sales. The conditions should be met before the parties conducting such private sales are as follows (i) After 1 month period from the date of announcement from the Fiducia Grantor and/or Fiducia holder to the “parties concerned” (ii) announcement in at least two news papers with circulation in the such “area concerned”. There is no further explanation in Fiducia Law about the meaning of “parties concerned” or “area concerned”. Unless stipulated otherwise by the parties, Fiducia Interest shall include not only the Fiducia interest but also including insurance claim in case there is insurance proceeds payable from the secured properties.
Indonesia Fiducia Law
Indonesian Security Law – Fiducia
Law No. 42 of 1999 regarding Fiducia Interest (“Fiducia Law”) brings Indonesia to the new era of security law. This is due to the fact that after years of implementing this kind of security, to be frank there is no clear formal regulation that regulates this kind of practice. Before the enactment of Fiducia Law, this practice was based on Old Dutch Jurisprudence the-so-called Arrest Hoge Raad “Bierbrouwerij- Arrest” dated 25 January 1929.
1. Background
According to Indonesian law, every creditor has a general blanket security as provided by Article 1131 Indonesian Civil Code (“ICC”). Under Article 1131 ICC, a creditor has the security over all goods belongs to the debtor. This kind of security is provided by the law, thus by the operation of law (every) Creditor automatically enjoy this kind of right, that is why we called it a general provision of security. General provision of security applies to all creditors, thus there is opportunity that the amount of the goods is not sufficient compare to the amount of the debt. In order to avoid these circumstances, the Creditor wishes to have a special security that attached directly to the goods and will not be contested to the other creditor.
Basically, Indonesian security law recognizes two kinds of securities, the first is security in-rem and security in-personam. In-rem rights give the holder of security rights directly to the goods and do not consider who currently posses the goods. On the other hand, the right in rem which is created by contract only gives security rights that might only be exercised toward the contracting party. Therefore, basically we may conclude that the in-rem rights is with regard to legal relationship between the holder of such rights to the goods, and in-personam rights is legal relationship between the contracting party.
Before the enactment of Fiducia Law, ICC only provides the Gadai/pledge as the instrument of security to any movable goods. In this article, in order not to make any ambiguities movables goods shall means any “ordinary movable goods” and not including the registered movable goods (ie. registered vessel).
The need to have Fiducia (Fiducire Eigendomsoeverdracht) as one of the security interest arise because there is provision in Article 1152 (2) of Indonesia Civil Code (ICC) that require goods under the pledge shall not under the possession of pledgor (the one who deposits property as a pledge).
The requirement to transfer the goods is also implies from the requirement as stipulated in Article 1977 (1) ICC. According to Article 1977(1) ICC, every third party that has a good faith can assume that everyone that posses a good is the owner to such good. If such third party buys such good and the seller transfer the ownership of such good to such third party, such the third party now become a legitimate owner of such good. Thus, for the sake of creditor’s security it is highly important to transfer the possession of the good to the pledgor. Moreover, the pledge will be deemed terminate if the goods under the pledge after obtaining approval from pledgor being possessed by the pledge again. Such requirements create difficulties to the pledgor and also to the pledgee. That is why the government enacted the Fiducia Law in order to avoid the difficulties among the parties.
2. The Basic of Fiducia
Fiducia basically is a transfer of ownership for security purposes (fiduciare eigendomsoverdracht tot zekerheid). The transfer of ownership is based on a good faith with a promise that the goods is still under the possession of debtor. The transfer of ownership to the goods as an object of fiducia can be conducted using Constitutum Possessorium/verklaring van houderschap method. In this method of transfer, the Fiducia grantor will continue posses the goods under Fiducia for the sake of Fiducia holder even if he already transferred the ownership of such good. In this case, such transfer of ownership does not actually transfer the title of ownership per se, but merely as a security.
There are three phases when we want to enter into Fiducia creation:
1. The Parties enter into a loan agreement. Fiducia interest basically has the accessory nature typical of the accessory nature of pledge and hypothec. This means that the creation and termination of Fiducia is attached to and dependent on the existence of the main agreement.
2. The parties then enter into the proprietary agreement/deed (zakelijk overeenkomst) between the grantor and grantee of Fiducia on the transfer of secured interest. Such agreement should be made using a notarial deed and should include at least the following information:
- Date of the Deed;
- Identity of grantor and grantee;
- The data of main agreement (usually a loan agreement);
- The description about goods that will become the object of Fiducia interest;
- The value of security;
- the value of Fiducia interest.
3. Registration of such Fiducia Deed to the Fiducia Office. This is one of the most important phases when we want to enter into Fiducia creation because the date of registration in the Fiducia Office is date of inception date. The provision concerning the inception date is subject to Article 613 ICC regarding the cessie (assignment) of the account receivables and other intangible properties. Under the Article 613 ICC, the creditor shall make a notice to the debtor about such assignment.
Fiducia is a security-in-rem, the holder of Fiducia has a preferred right to the goods compare to the other creditor. Even in the bankruptcy process, the object of Fiducia is not included the bankruptcy estate (boedel failiet). The holder of Fiducia may put the object in public sale and receive all the monies from such public sale without any necessity to divide the monies to the other creditor. The proceeds derived from such public sale is applied firstly for the repayment to the Fiducia holder.
The Fiducia has the accessory in nature which implies that the creation and termination of Fiducia as a security agreement is attached to and dependent on the existence of main agreement (loan agreement).
3. Fiducia Security
After the enactment of Fiducia Law, a Fiducia deed shall be filled for registration by the Fiducia holder at the Fiducia office. Such Fiducia deed shall at least include the following data; the main loan agreement, description of the goods that will become the object of Fiducia, the amount of security and the value of the object. Fiducia inception date is the date on which Fiducia is registered in the Fiducia office. Such registration is very important especially because the secured object is commonly movable goods. The other factor is because the provision as stipulated under Article 1977 ICC as mentioned above. With the registration system, the Fiducia Law fulfill the principle of publication, one significant element of right-in-rem (zakelijk zekerheid) that has the “droid de suit” title thus the Fiducia security will follow the goods no matter whoever possess the goods. The confirmation wipes out doubts over the opinion that fiducia interest does not create a proprietary right, merely an obligatory agreement which creates personal (peroonlijk) right for the creditor.
4. The Execution of Fiducia Interest
The law provides methods that can be used by creditor in case the debtor is in the default position, execution of Fiducia interest can be done through the following methods:
a. Enforcement of the executorial title under the Fiducia Certificate. This process in theory can be done without any involvement from the court because the Fiducia certificate has the following headings “Demi Keadilan Berdasarkan Ketuhanan yang Maha Esa”/ For the Sake of Justice in the Name of God the Almighty. This title is an executorial title comparable to a final and binding court decision.
b. Directly sale the Fiducia interest through public sale. In addition to the executorial title, the Fiducia Law provides the so-called parate executie, whereby the creditor is entitled to sell the secured goods on his own authority in a public auction.
c. Private sales. Private sales can be conducted if there is agreement between the parties if both parties can have better price using such private sales. The conditions should be met before the parties conducting such private sales are as follows (i) After 1 month period from the date of announcement from the Fiducia Grantor and/or Fiducia holder to the “parties concerned” (ii) announcement in at least two news papers with circulation in the such “area concerned”. There is no further explanation in Fiducia Law about the meaning of “parties concerned” or “area concerned”. Unless stipulated otherwise by the parties, Fiducia Interest shall include not only the Fiducia interest but also including insurance claim in case there is insurance proceeds payable from the secured properties.
Law No. 42 of 1999 regarding Fiducia Interest (“Fiducia Law”) brings Indonesia to the new era of security law. This is due to the fact that after years of implementing this kind of security, to be frank there is no clear formal regulation that regulates this kind of practice. Before the enactment of Fiducia Law, this practice was based on Old Dutch Jurisprudence the-so-called Arrest Hoge Raad “Bierbrouwerij- Arrest” dated 25 January 1929.
1. Background
According to Indonesian law, every creditor has a general blanket security as provided by Article 1131 Indonesian Civil Code (“ICC”). Under Article 1131 ICC, a creditor has the security over all goods belongs to the debtor. This kind of security is provided by the law, thus by the operation of law (every) Creditor automatically enjoy this kind of right, that is why we called it a general provision of security. General provision of security applies to all creditors, thus there is opportunity that the amount of the goods is not sufficient compare to the amount of the debt. In order to avoid these circumstances, the Creditor wishes to have a special security that attached directly to the goods and will not be contested to the other creditor.
Basically, Indonesian security law recognizes two kinds of securities, the first is security in-rem and security in-personam. In-rem rights give the holder of security rights directly to the goods and do not consider who currently posses the goods. On the other hand, the right in rem which is created by contract only gives security rights that might only be exercised toward the contracting party. Therefore, basically we may conclude that the in-rem rights is with regard to legal relationship between the holder of such rights to the goods, and in-personam rights is legal relationship between the contracting party.
Before the enactment of Fiducia Law, ICC only provides the Gadai/pledge as the instrument of security to any movable goods. In this article, in order not to make any ambiguities movables goods shall means any “ordinary movable goods” and not including the registered movable goods (ie. registered vessel).
The need to have Fiducia (Fiducire Eigendomsoeverdracht) as one of the security interest arise because there is provision in Article 1152 (2) of Indonesia Civil Code (ICC) that require goods under the pledge shall not under the possession of pledgor (the one who deposits property as a pledge).
The requirement to transfer the goods is also implies from the requirement as stipulated in Article 1977 (1) ICC. According to Article 1977(1) ICC, every third party that has a good faith can assume that everyone that posses a good is the owner to such good. If such third party buys such good and the seller transfer the ownership of such good to such third party, such the third party now become a legitimate owner of such good. Thus, for the sake of creditor’s security it is highly important to transfer the possession of the good to the pledgor. Moreover, the pledge will be deemed terminate if the goods under the pledge after obtaining approval from pledgor being possessed by the pledge again. Such requirements create difficulties to the pledgor and also to the pledgee. That is why the government enacted the Fiducia Law in order to avoid the difficulties among the parties.
2. The Basic of Fiducia
Fiducia basically is a transfer of ownership for security purposes (fiduciare eigendomsoverdracht tot zekerheid). The transfer of ownership is based on a good faith with a promise that the goods is still under the possession of debtor. The transfer of ownership to the goods as an object of fiducia can be conducted using Constitutum Possessorium/verklaring van houderschap method. In this method of transfer, the Fiducia grantor will continue posses the goods under Fiducia for the sake of Fiducia holder even if he already transferred the ownership of such good. In this case, such transfer of ownership does not actually transfer the title of ownership per se, but merely as a security.
There are three phases when we want to enter into Fiducia creation:
1. The Parties enter into a loan agreement. Fiducia interest basically has the accessory nature typical of the accessory nature of pledge and hypothec. This means that the creation and termination of Fiducia is attached to and dependent on the existence of the main agreement.
2. The parties then enter into the proprietary agreement/deed (zakelijk overeenkomst) between the grantor and grantee of Fiducia on the transfer of secured interest. Such agreement should be made using a notarial deed and should include at least the following information:
- Date of the Deed;
- Identity of grantor and grantee;
- The data of main agreement (usually a loan agreement);
- The description about goods that will become the object of Fiducia interest;
- The value of security;
- the value of Fiducia interest.
3. Registration of such Fiducia Deed to the Fiducia Office. This is one of the most important phases when we want to enter into Fiducia creation because the date of registration in the Fiducia Office is date of inception date. The provision concerning the inception date is subject to Article 613 ICC regarding the cessie (assignment) of the account receivables and other intangible properties. Under the Article 613 ICC, the creditor shall make a notice to the debtor about such assignment.
Fiducia is a security-in-rem, the holder of Fiducia has a preferred right to the goods compare to the other creditor. Even in the bankruptcy process, the object of Fiducia is not included the bankruptcy estate (boedel failiet). The holder of Fiducia may put the object in public sale and receive all the monies from such public sale without any necessity to divide the monies to the other creditor. The proceeds derived from such public sale is applied firstly for the repayment to the Fiducia holder.
The Fiducia has the accessory in nature which implies that the creation and termination of Fiducia as a security agreement is attached to and dependent on the existence of main agreement (loan agreement).
3. Fiducia Security
After the enactment of Fiducia Law, a Fiducia deed shall be filled for registration by the Fiducia holder at the Fiducia office. Such Fiducia deed shall at least include the following data; the main loan agreement, description of the goods that will become the object of Fiducia, the amount of security and the value of the object. Fiducia inception date is the date on which Fiducia is registered in the Fiducia office. Such registration is very important especially because the secured object is commonly movable goods. The other factor is because the provision as stipulated under Article 1977 ICC as mentioned above. With the registration system, the Fiducia Law fulfill the principle of publication, one significant element of right-in-rem (zakelijk zekerheid) that has the “droid de suit” title thus the Fiducia security will follow the goods no matter whoever possess the goods. The confirmation wipes out doubts over the opinion that fiducia interest does not create a proprietary right, merely an obligatory agreement which creates personal (peroonlijk) right for the creditor.
4. The Execution of Fiducia Interest
The law provides methods that can be used by creditor in case the debtor is in the default position, execution of Fiducia interest can be done through the following methods:
a. Enforcement of the executorial title under the Fiducia Certificate. This process in theory can be done without any involvement from the court because the Fiducia certificate has the following headings “Demi Keadilan Berdasarkan Ketuhanan yang Maha Esa”/ For the Sake of Justice in the Name of God the Almighty. This title is an executorial title comparable to a final and binding court decision.
b. Directly sale the Fiducia interest through public sale. In addition to the executorial title, the Fiducia Law provides the so-called parate executie, whereby the creditor is entitled to sell the secured goods on his own authority in a public auction.
c. Private sales. Private sales can be conducted if there is agreement between the parties if both parties can have better price using such private sales. The conditions should be met before the parties conducting such private sales are as follows (i) After 1 month period from the date of announcement from the Fiducia Grantor and/or Fiducia holder to the “parties concerned” (ii) announcement in at least two news papers with circulation in the such “area concerned”. There is no further explanation in Fiducia Law about the meaning of “parties concerned” or “area concerned”. Unless stipulated otherwise by the parties, Fiducia Interest shall include not only the Fiducia interest but also including insurance claim in case there is insurance proceeds payable from the secured properties.
Selasa, 07 Juli 2009
Mushroom farm
I want to start my own Mushroom farm within this year. Last week I spent the weekend in my friend's farm in Bogor - West Java. It make me wonder that there are several farmer cultivate mushroom in the middle of Bogor town. Yes, it is Bogor 240M from sea level...I always think that we should go to Cianjur or Sukabumi to cultivate mushroom.
Subhanallah, we can cultivate mushroom in Bogor. Ya Allah please give me strength to cultivate the rich and prosperous country because I saw a lot of abandoned land in Indonesia.
One thing that I learned last week :
I need to learn how to sterilize the baglog. My friend using just an ordinary drum sealed with ordinary plat in its top cover and not using the autoclave. He avoid using the autoclave because it is so pricey.
The problem the temperature cannot raising up above 100 celcius. I suggest to make a better boiler in order to get a higher pressure. As I remembered, in order to raise the temperature we have to raise the pressure PT = constant.
I will keep on updating the mushroom farm later
Subhanallah, we can cultivate mushroom in Bogor. Ya Allah please give me strength to cultivate the rich and prosperous country because I saw a lot of abandoned land in Indonesia.
One thing that I learned last week :
I need to learn how to sterilize the baglog. My friend using just an ordinary drum sealed with ordinary plat in its top cover and not using the autoclave. He avoid using the autoclave because it is so pricey.
The problem the temperature cannot raising up above 100 celcius. I suggest to make a better boiler in order to get a higher pressure. As I remembered, in order to raise the temperature we have to raise the pressure PT = constant.
I will keep on updating the mushroom farm later
Rabu, 27 Juni 2007
this is simply me
After several months maybe years, now I start blogging again. About my life as a husband, a lawyer, a businessman or as a five legs seller (ha ha ha pedagang kaki lima) :-)
Yesterday I try to make a new venture in Pondok Gede Area. With a friend of mine we will make a small hut that will sell Indomie, roast bread, kacang ijo with black glutenous rice (kacang item) and all the stuff that usually sold in a small hut. But, today we want to make it a clean and cozy. Not so cozy though, cause we want to sell it to middle to low market. We don't want they get us wrong with the impression that this is a pricey one.
I will keep on updating my last venture. I really excited with this one, hope I can make a living here and I don't have to become a lawyer anymore.
Yesterday I try to make a new venture in Pondok Gede Area. With a friend of mine we will make a small hut that will sell Indomie, roast bread, kacang ijo with black glutenous rice (kacang item) and all the stuff that usually sold in a small hut. But, today we want to make it a clean and cozy. Not so cozy though, cause we want to sell it to middle to low market. We don't want they get us wrong with the impression that this is a pricey one.
I will keep on updating my last venture. I really excited with this one, hope I can make a living here and I don't have to become a lawyer anymore.
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