THE EXISTENCE OF PASSIVE SUBJECTIVE NOVATION IN THE LEGAL SYSTEM OF AGREEMENTS AND WARRANTIES

Abstract

Passive Subjective Novation is a replacement of the old debtor with a new debtor, and the creditor agrees that the old debtor is freed from the obligation to pay the debt. In Indonesia, Novation is regulated in the provisions of Article 1381 of the Civil Code, but in reality there is no single legal regulation that clearly explains Novation, especially Passive Subjective Novation. This legal vacuum regarding Passive Subjective Novation then causes legal uncertainty and creates problems because there are no clear references in terms of understanding, implementing regulations, and standard operating procedures (SOPs). The problems in this study are related to the existence of Passive Subjective Novation in credit agreements with mortgage rights in the legal system of agreements and guarantees, the meaning of Passive Subjective Novation in credit agreements by using mortgage guarantees on land, and the legal position of new debtors with Passive Subjective Novation so that can provide legal certainty. This research is normative juridical research using an analytical approach and a conceptual approach as well as grammatical interpretation analysis techniques, systematic interpretations and teleological interpretations to analyze primary, secondary and tertiary legal materials. The results of this study indicate that the existence of a novation credit agreement, especially a passive subjective novation if carried out will involve the parties who were originally involved in the previous credit agreement. The novation is carried out explicitly by using a concrete authentic deed to confirm the position of this novation in the credit agreement. Switching the debtor when the credit agreement is still halfway through, can cause problems for the bank, and the most important and first problem that arises is who will continue the credit agreement because it is impossible for the credit agreement to be released just like that.