Basically, a debt and receivables agreement is not required to be accompanied by a guarantee agreement. In accordance with Article 1320 of the Civil Code, in order for a valid agreement to occur, four conditions only need to be met:

1. their agreement that binds them;
2. the ability to create an agreement;
3. a particular subject matter;
4. a reason that is halal/not forbidden.

The guarantee agreement is an accessory agreement to the debt and receivables agreement. According to Frieda Husni Hasbullah in her book Civil Property Law Volume II: Rights that Provide Guarantees (p. 6), the nature of accessoir means that the guarantee agreement is an additional agreement that depends on the main agreement. The main agreement is a loan or debt agreement, which is followed by an additional agreement as collateral. This additional agreement is intended to ensure creditor security. The accessoir nature of collateral rights can give rise to the following legal consequences:

1. The existence and deletion of additional agreements depends on the main agreement.
2. If the main agreement is void, then the additional agreement is also void.
3. If the main agreement changes, then the additional agreement also changes.
4. If the main agreement is transferred due to cessie or subrogatie , then the additional agreement is also transferred without special assignment.

The accessoir nature of mortgage rights is emphasized in Article 10 paragraph (1) of the Mortgage Rights Law which reads:

The granting of Mortgage Rights is preceded by a promise to provide Mortgage Rights as collateral for the repayment of a particular debt, which is stated in and is an inseparable part of the relevant debt agreement or other agreement which gives rise to the debt.

Since the enactment of the Mortgage Rights Law, mortgage rights have become the only recognized security rights over land. You can find this confirmation in Third Paragraph Number 5 of the General Explanation of the Mortgage Rights Law, which reads:

… Mortgage Rights is the only institution of security rights over land, and thus completes the unification of the National Land Law, which is one of the main objectives of the Basic Agrarian Law.

Mortgage rights are security rights imposed on land rights as intended in the PA Law, including or not including other objects which are an integral part of the land, for the repayment of certain debts, which gives certain creditors a preferred position over other creditors. other . Land rights that can be encumbered with mortgage rights are ownership rights, business use rights and building use rights. Use rights to state land which according to applicable regulations must be registered and are transferable by nature may also be subject to mortgage rights. Mortgage rights can also be imposed on land rights as well as existing or future buildings, plants and works which are an integral part of the land, and which belong to the land rights holder whose encumbrances are expressly stated in the deed granting mortgage rights. concerned.

An object of mortgage rights can be encumbered with more than one mortgage right to guarantee the repayment of more than one debt. If an object of mortgage rights is burdened with more than one mortgage right, the ranking of each mortgage right is determined according to the date of registration at the land office. The ranking of mortgage rights registered on the same date is determined based on the date the deed granting the mortgage rights in question was drawn up.

Land cannot be guaranteed with any other form of collateral other than Mortgage Rights .

Article 29 of the Mortgage Rights Law regulates that with the enactment of this Law, the provisions regarding Credit Verband as stated in Staatsblad 1908-542 jo. Staatsblad 1909-586 and Staatsblad 1909-584 as amended by Staatsblad 1937-190 jo. Staatsblad 1937-191 and the provisions regarding Hypotheek as stated in Book II of the Indonesian Civil Code insofar as they concern the imposition of Mortgage Rights on land rights and objects related to the land are declared no longer valid.

Even though buildings can be encumbered with mortgage rights, the Elucidation to Article 3 letter a of the Fiduciary Law explains that buildings on land belonging to other people which cannot be encumbered with mortgage rights can be used as objects of fiduciary collateral. What is confirmed in Article 1 point 2 of the Fiduciary Law which states that one of the objects of fiduciary guarantee is immovable objects, especially buildings which cannot be encumbered with mortgage rights as intended in the Mortgage Law.

Legal basis:

1. Code of Civil law;
2. Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles;
3. Law Number 42 of 1999 concerning Fiduciary Guarantees;
4. Law Number 4 of 1996 concerning Mortgage Rights over Land and Objects Related to Land.

Reference:

1. Frieda Husni Hasbullah. Civil Property Law Volume II: Rights that Provide Guarantees. Jakarta: Ind-Hill Co., 2005.
2. Hukumonline.com