Legal Protection Of Fiduciary Recipients In Fiduciary Agreements Made Under The Hand (research At PT. Internusa Tribuna Citra Multi Finance Medan)

Feb 27, 2025 by ADMIN 147 views

Legal Protection of Fiduciary Recipients in Fiduciary Agreements made under the hand

Discussion Category: Master Theses (Notary), Education, Journal, Thesis, University, Student, Campus

Introduction

In the realm of financial transactions, fiduciary agreements play a crucial role in ensuring the security and stability of business relationships. A fiduciary agreement is a form of guarantee regulated in Law No. 42 of 1999 concerning Fiduciary Guarantee. This law stipulates that a fiduciary agreement should be made in the form of a notary deed and registered at the Fiduciary Registration Office. However, in practice, many financial institutions have entered into fiduciary agreements under the hand, which are not notarized and unregistered. This article aims to discuss the legal protection of fiduciary recipients in the context of fiduciary agreements made under the hand, as well as the challenges faced in practice.

The Importance of Fiduciary Agreements

Fiduciary agreements are essential in ensuring the security of financial transactions. They provide a guarantee that the debtor will fulfill their obligations, thereby protecting the interests of the creditor. In the context of financial institutions, fiduciary agreements are used to secure loans and other financial transactions. However, the lack of notarization and registration of these agreements can lead to legal complexities and disputes.

Analysis of the Under-Hand Fiduciary Agreement

One of the main issues to be examined is whether the principle of freedom of contract stipulated in Article 1338 of the Civil Code (KUHPER) can be applied to a fiduciary agreement made under the hand. The article confirms that all agreements made legally bind the parties. However, in the case of a fiduciary agreement, there are exceptions that need attention. Based on legal provisions, this agreement should meet certain formal requirements, such as a notary deed and registration at the Fiduciary Registration Office. If it does not meet these requirements, the agreement is considered null and void.

There are several reasons why financial institutions choose to enter into a fiduciary agreement under the hand. First, to help clients reduce costs. Second, fierce business competition causes clients to prefer institutions that offer simpler processes and lower costs. Third, in many cases, the credit value given is relatively small and the loan period is short, so that the cost of making a notary deed and registration is considered not comparable to the agreement value.

However, it is essential to note that the consequences of unregistered fiduciary agreements are severe. PT. Internusa Tribuna Citra Multi Finance (ITC) Medan Branch as Creditors does not have an official status as a fiduciary recipient. In the event that the debtor violates, the legal process must be carried out through the court by suing civilly. This is a big challenge because the agreement made is only general and does not have preference rights to material guarantees.

The Challenges of Unregistered Fiduciary Agreements

Unregistered fiduciary agreements can lead to several challenges, including:

Lack of legal recognition: Unregistered fiduciary agreements are not recognized by the law, which can lead to disputes and legal complexities.
Difficulty in enforcing rights: In the event of a dispute, the creditor may face difficulties in enforcing their rights, as the agreement is not registered and does not have preference rights.
Increased costs: The process of enforcing rights through the court can be time-consuming and costly, which can lead to financial losses for the creditor.

Recommendation

From the results of this study, it is recommended that every financial institution should make a notary deed and register a fiduciary agreement carried out. In this way, they will have preference rights that are legally recognized. Although the fiduciary agreement made under the hand technically can be considered valid, the execution of rights arising from the agreement will be complicated, time-consuming, and not small costs.

By understanding the importance of making a fiduciary agreement that meets legal requirements, it is hoped that financial institutions can protect their rights and provide better guarantees to the fiduciary recipients, and avoid the potential for future legal disputes. This is important to maintain trust in business relationships and ensure legal certainty for all parties involved.

Conclusion

In conclusion, fiduciary agreements made under the hand can lead to several challenges, including the lack of legal recognition, difficulty in enforcing rights, and increased costs. It is essential for financial institutions to make a notary deed and register a fiduciary agreement carried out to ensure that their rights are protected and to provide better guarantees to the fiduciary recipients. By understanding the importance of making a fiduciary agreement that meets legal requirements, financial institutions can maintain trust in business relationships and ensure legal certainty for all parties involved.

Recommendations for Future Research

Based on the findings of this study, several recommendations for future research are proposed:

Further analysis of the legal implications of unregistered fiduciary agreements: A more in-depth analysis of the legal implications of unregistered fiduciary agreements is necessary to understand the extent of the challenges faced by financial institutions.
Development of guidelines for making fiduciary agreements: The development of guidelines for making fiduciary agreements that meet legal requirements can help financial institutions to ensure that their rights are protected and to provide better guarantees to the fiduciary recipients.
Case studies of successful fiduciary agreements: Case studies of successful fiduciary agreements can provide valuable insights into the best practices for making fiduciary agreements that meet legal requirements.

By conducting further research in these areas, financial institutions can better understand the importance of making fiduciary agreements that meet legal requirements and can develop strategies to ensure that their rights are protected and to provide better guarantees to the fiduciary recipients.
Frequently Asked Questions (FAQs) about Fiduciary Agreements

Q: What is a fiduciary agreement?

A: A fiduciary agreement is a form of guarantee regulated in Law No. 42 of 1999 concerning Fiduciary Guarantee. It is a contract between two parties, where one party (the fiduciary) agrees to act in the best interests of the other party (the beneficiary).

Q: What are the requirements for a valid fiduciary agreement?

A: A valid fiduciary agreement must meet certain formal requirements, such as:

Notarization: The agreement must be made in the form of a notary deed.
Registration: The agreement must be registered at the Fiduciary Registration Office.
Clear and concise language: The agreement must be written in clear and concise language, free from ambiguity.

Q: What are the consequences of an unregistered fiduciary agreement?

A: An unregistered fiduciary agreement can lead to several consequences, including:

Lack of legal recognition: The agreement is not recognized by the law, which can lead to disputes and legal complexities.
Difficulty in enforcing rights: In the event of a dispute, the creditor may face difficulties in enforcing their rights, as the agreement is not registered and does not have preference rights.
Increased costs: The process of enforcing rights through the court can be time-consuming and costly, which can lead to financial losses for the creditor.

Q: Can a fiduciary agreement made under the hand be considered valid?

A: Although a fiduciary agreement made under the hand can be considered valid, the execution of rights arising from the agreement will be complicated, time-consuming, and not small costs. It is recommended that every financial institution should make a notary deed and register a fiduciary agreement carried out to ensure that their rights are protected and to provide better guarantees to the fiduciary recipients.

Q: What are the benefits of making a fiduciary agreement that meets legal requirements?

A: Making a fiduciary agreement that meets legal requirements can provide several benefits, including:

Legal recognition: The agreement is recognized by the law, which can provide legal certainty for all parties involved.
Easy enforcement of rights: In the event of a dispute, the creditor can easily enforce their rights, as the agreement is registered and has preference rights.
Reduced costs: The process of enforcing rights through the court is simplified, which can reduce costs for the creditor.

Q: How can financial institutions ensure that their rights are protected and provide better guarantees to the fiduciary recipients?

A: Financial institutions can ensure that their rights are protected and provide better guarantees to the fiduciary recipients by making a notary deed and registering a fiduciary agreement carried out. This can provide legal recognition, easy enforcement of rights, and reduced costs.

Q: What are the best practices for making fiduciary agreements that meet legal requirements?

A: The best practices for making fiduciary agreements that meet legal requirements include:

Clear and concise language: The agreement must be written in clear and concise language, free from ambiguity.
Notarization: The agreement must be made in the form of a notary deed.
Registration: The agreement must be registered at the Fiduciary Registration Office.

By following these best practices, financial institutions can ensure that their rights are protected and provide better guarantees to the fiduciary recipients.