scholarly journals EKSEKUSI JAMINAN PERORANGAN (BORGTOCHT) DALAM PENYELESAIAN KREDIT MACET MELALUI KEPAILITAN (ANALISIS PUTUSAN MAHKAMAH AGUNG RI NOMOR 2960 K/Pdt/2010)

Jurnal MINUTA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 14-19
Author(s):  
Evi Retno Wati
Keyword(s):  
Supreme Court ◽  
Civil Code ◽  
Third Party ◽  
The Third ◽  
The Supreme Court ◽  
The Law ◽  
The Third Party ◽  
The Right

Generally collateral is divided into two, namely personal guarantee (persoonlijke zekerheid) and corporeal guarantee (zakerlijke zekerheid). On Personal collateral, what given by debtor was not an object but a statement made by the third party who has no interest at all both toward debtor or creditor. In the case that was reviewed in this research to wit The supreme court of Republic of Indonesia decree No. 2960 K/Pdt/2010 PT. Pertamina Dana Ventura (first named PT. Pertamina Saving & Investment), as a creditor filed a confiscation guarantee claim toward Kairudin Nur who is the guarantor of the debt of PT. Goro Bata Sakti (in bankruptcy) as a debtor. Guarantor in Indonesian Civil Code (later stated as KUHPer) is given a privilege which is stated in article 1831 KUHPer which given right to the guarantor to reject payment to creditor before the creditor’s property confiscated first and sold in order to pay the debts. If after the debtor’s property confiscated and sold are not enough to pay the debts, then in this case the guarantor is responsible for fulfilling the debts toward creditor. In The supreme court of Republic of Indonesia decree No. 2960 K/Pdt/2010, the guarantor right as ruled in KUHPer is violated. Therefore the law protection that can be given to the guarantor is the guarantor is given the right to accelerate the management and settlement toward debtor’s assets which were under curator supervision.

scholarly journals Third Party Fraud inducing Material Mistake Slip Knot Investments 777 (Pty) Ltd v du Toit 2011 4 SA 72 (SCA)

2017 ◽  
Vol 14 (7) ◽  
pp. 186
Author(s):  
Chris James Pretorius
Keyword(s):  
Supreme Court ◽  
General Rule ◽  
Case Law ◽  
Third Party ◽  
The Third ◽  
The Supreme Court ◽  
The Law ◽  
The Third Party ◽  
Court Of Appeal ◽  
Slip Knot

In Slip Knot Investments v Du Toit 2011 4 SA 72 (SCA) the Supreme Court of Appeal had to determine if the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of iustus error raised by the mistaken party. The position prior to this decision was uncertain and characterised by inconsistency, mostly occasioned by the application of the iustus error doctrine together with fault. The Supreme Court of Appeal found that in the circumstances the mistaken party was liable, despite the fraud of the third party, on the basis of the reliance theory. The decision is commendable for bringing a measure of certainty to the law of mistake on this point and indicating that the reliance theory (as opposed to the iustus error doctrine) is the appropriate means to resolving such cases. Nevertheless, it is suggested that although the general rule implied by the court's approach is entirely apposite, there may well be exceptional instances where on the basis of relevant policy considerations the reliance theory should not prevail and the mistaken party should be absolved from contractual liability. In this manner reliance, which at first seems reasonable for being induced by the conduct of the contract denier, may upon further reflection be regarded as unreasonable based on the consideration of risk creation at the hand of the contract assertor, for instance. Admitting exceptions in appropriate circumstances would also provide a degree of consonance with earlier case law, where, even if the court's approach was open to theoretical criticism, a court has intuitively felt that liability should not lie.

Relaxations of Contractual Privity and the Need for Third Party Rights in Chinese Contract Law

2018 ◽  
Author(s):  
Chen Lei
Keyword(s):  
Direct Action ◽  
Contract Law ◽  
Third Party ◽  
Chinese Law ◽  
The Third ◽  
Right Of Action ◽  
The Law ◽  
The Third Party ◽  
The Right

This chapter examines the position of third party beneficiaries in Chinese law. Article 64 of the Chinese Contract Law states that where a contract for the benefit of a third party is breached, the debtor is liable to the creditor. The author regards this as leaving unanswered the question of whether the thirdparty has a right of direct action against the debtor. One view regards the third party as having the right to sue for the benefit although this right was ultimately excluded from the law. Another view, supported by the Supreme People’s Court, is that Article 64 does not provide a right of action for a third party and merely prescribes performance in ‘incidental’ third party contracts. The third view is that there is a third party right of action in cases of ‘genuine’ third party contracts but courts are unlikely to recognize a third party action where the contract merely purports to confer a benefit on the third party.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

scholarly journals The Similarities and Differences between the Arbitration and Judgement Verdicts in Iran’s Laws

2017 ◽  
Vol 9 (1) ◽  
pp. 261
Author(s):  
Amir Mehdi Ghorbanpur ◽  
Sara Khakestarian
Keyword(s):  
Supreme Court ◽  
Correspondence Principle ◽  
Relative Effect ◽  
Third Party ◽  
The Third ◽  
Res Judicata ◽  
The Supreme Court ◽  
Final Sentence ◽  
Similarities And Differences ◽  
The Third Party

The main purpose of current research is to determine the similarities and differences between the arbitration and judgement verdicts in Iran’s laws. The results of current research indicate that there are many differences and similarities in the arbitration and judgement field in Iran’s laws. General similarities, attributes of judge and arbitrator from religious jurisprudence’s view, verdicts in Iran’s internal laws, investigation with reasons, and final sentence in the arbitration and judgement verdicts can be mentioned as some of these similarities. Also about the differences, some cases like: observance of the principles and adducing to the legal articles at the time of composing the verdict, observance of the formalities and judgement provisions in issuance of verdict, verdicts in terms of requesting for the revision, ability to appeal to the Supreme Court, rehabilitation, jurisdiction, protestation, issuance of verdict by judges and arbitrators, procedural conditions in composing the verdict, regard to recite the verdict in terms of being revisable or non-revisable, third-party entry ability, attracting the third-party, features of verdicts in terms of the ability to prove, possibility to issue the request for garnishee and temporary commandment, correction of verdict, the features of verdicts in terms of the res judicata, competence for issuance of reformatory report, competence for issuance of preliminary (interlocutory) decree, moratorium for objecting about the verdict, the third-party’s ability to object about the verdict, having the relative effect, changing the verdict (judge exemption, arbitrator exemption), communication of verdict, the manner of judgement investigation with courts, investigation dependent on provisions of civil judgement rules, investigation dependent on judgement principles (correspondence principle, observance of the defense right of parties), competence for investigation of the legal affairs, start to investigate, the investigation range, the investigation place, being overt or non-overt, investigation and transmission to the another person, difference between arbitration and judgement in the religious jurisprudence and judge and arbitrator positions from the religious jurisprudence are some results obtained at current research.

scholarly journals The Most Important Legislative Amendments Related to the Effect of the Contract Towards the Third Party in the French Civil Code Amended in 2016 and 2018

2020 ◽  
pp. 1-27
Author(s):  
Raghid Fattal ◽  
Keyword(s):  
Legal Status ◽  
Civil Code ◽  
Third Party ◽  
The Third ◽  
The Law ◽  
The Third Party ◽  
Legislative Amendments

The French decree no. 131/2016 promulgated on Feb.10, 2016, and the Law no. 287/2018 promulgated on April 20, 2018 have amended many issues in the French Civil Code, including the doctrine “the contract has effect towards the parties only”. However, this doctrine is not very clear, and needs to be interpreted according to the new legislations. This shall include the idea that “the third party shall respect the legal status created by the contract”, and the idea that the third party can benefit from the legal status created by the contract as well. The doctrine according to which the simulated contract does not have effect towards the third party, and the nullity of the contract that simulates the true price, and how the amendments of the articles 1199 and 1200 of the French Civil Code affect the courts decisions that allow the third party to oblige the seller to execute the sale contract. It is also important to mention the conditions that allow the third party to sue for damages, the debtor who did not perform his/her contractual duties. We would like also to mention the opinions of the Law projects makers, and to compare the laws with the UAE Civil Transactions Law. The new doctrine of “binding himself on behalf of a third party” and the doctrine of “stipulation for the benefit of a third party” shall be interpreted according to the new legislations.

scholarly journals Kedudukan Hukum Anak Diluar Kawin dalam Mendapatkan suatu Warisan

2019 ◽  
Vol 8 (1) ◽  
pp. 81-94
Author(s):  
Billy Verian Salim
Keyword(s):  
Third Party ◽  
Inheritance Law ◽  
The Third ◽  
The Law ◽  
The Third Party ◽  
The Right ◽  
Legal Consequences

The inheritance law is a rule governing the legal consequences of a person's death against theintangible property: the transfer of wealth from the heir to the heirs. Either in the relationshipof their fellow heirs or between them and the third party. The child is still open to theopportunity to inherit the property of his parents, with the record he has been recognized byhis ayah-ibunya, while the right to justify the mother's possessions by the law is determinedautomatically without the need for a Recognition. Despite being born out of a legitimatemarriage, the acknowledged child of marriage is a hereditary heir.Keywords : law, child out of marriage, inheritance

Contracts for the Benefit of Third Parties Under the Taiwan Civil Code

2018 ◽  
Author(s):  
Sheng-Lin JAN
Keyword(s):  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Legal Relationship ◽  
The Third Party ◽  
Privity Of Contract

This chapter discusses the position of third party beneficiaries in Taiwan law where the principle of privity of contract is well established. Article 269 of the Taiwan Civil Code confers a right on the third party to sue for performance as long as the parties have at least impliedly agreed. This should be distinguished from a ‘spurious contract’ for the benefit of third parties where there is no agreement to permit the third party to claim. Both the aggrieved party and the third party beneficiary can sue on the contract, but only for its own loss. The debtor can only set off on a counterclaim arising from its legal relationship with the third party. Where the third party coerces the debtor into the contract, the contract can be avoided, but where the third party induces the debtor to contract with the creditor by misrepresentation, the debtor can only avoid the contract if the creditor knows or ought to have known of the misrepresentation.

KEPEMILIKAN DAN PENGUASAAN OBJEK JAMINAN FIDUSIA APABILA TERJADI SENGKETA WANPRESTASI DALAM PERJANJIAN KREDIT

2020 ◽  
Vol 8 (1) ◽  
pp. 78
Author(s):  
Dija Hedistira ◽  
' Pujiyono
Keyword(s):  
Economic Benefits ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
Analysis Method ◽  
The Law ◽  
The Right

<p>Abstract<br />This article aims to analyze the ownership and mastery of a fiduciary collateral object, in cases that often occur today, many disputes between creditors and debtors in fiduciary collateral agreements are caused because creditors assume that with executive rights as fiduciary recipients, the fiduciary collateral object legally owned by creditors and creditors the right to take and sell fiduciary collateral objects when the debtor defaults unilaterally, as well as the debtor who considers that the fiduciary collateral object is owned by him because the object is registered on his name, so that the debtor can use the object free as  giving to a third party or selling the object of fiduciary guarantee unilaterally. the author uses a normative <br />juridical approach, and deductive analysis method based on the Civil Code and fiduciary law applicable in Indonesia, Law No. 42 of 1999 concerning Fiduciary Guarantees. The conclusion of the discussion is the ownership of the object of the Fiduciary Guarantee is owned by the debtor in accordance with the Law, mastery of the object of collateral controlled by the debtor for economic benefits, the procedure of execution The object of Fiduciary Guarantee is carried out in accordance with the Fiduciary Guarantee Act, an alternative mediation in resolving the dispute. There needs to be clarity in the use of language in making a law, so as not to conflict with each other between Article one and the other Articles.<br />Keywords: Ownership; Mastery; Object of Fiduciary Guarantee; Debtor; Creditors.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis tentang kepemilikan dan penguasaan suatu objek jaminan fidusia, dalam kasus yang saat ini sering terjadi, banyak sengketa antara kreditur dan debitur dalam perjanjian jaminan fidusia disebabkan karena kreditur beranggapan bahwa dengan adanya hak eksekutorial sebagai penerima fidusia, maka objek jaminan fidusia tersebut secara sah dimiliki oleh kreditur dan kreditur berhak mengambil dan menjual objek jaminan fidusia saat debitur cidera janji<br />(wanprestasi) secara sepihak, begitupun dengan debitur yang menganggap bahwa objek jaminan fidusia tersebut dimiliki olehnya karena objek tersebut terdaftar atas namannya, sehingga debitur dapat mempergunakan objek tersebut secara bebas seperti menyerahkan kepada pihak ketiga atau menjual objek jaminan fidusia tersebut secara sepihak. penulis menggunakan pendekatan yuridis normatif, dan metode analisis deduktif yang didasarkan pada Kitab Undang-Undang Hukum Perdata<br />dan hukum jaminan fidusia yang berlaku di Indonesia, Undang-Undang No. 42 Tahun 1999 tentang Jaminan Fidusia. Kesimpulan pembahasan adalah Kepemilikan Objek Jaminan Fidusia dimiliki oleh debitur sesuai Undang-undang, penguasaan objek jaminan dikuasai debitur untuk manfaat ekonomis, prosedur eksekusi Objek Jaminan Fidusia dilakukan sesuai dengan Undang-Undang Jaminan Fidusia, alternatif secara mediasi dalam menyelesaikan sengketa yang terjadi. Perlu ada kejelasan dalam<br />penggunaan bahasa pada pembuatan suatu Undang-Undang, agar tidak saling bertentangan antar Pasal satu dengan Pasal yang lainnya. <br />Kata Kunci: Kepemilikan; Penguasaan; Objek Jaminan Fidusia; Debitur; Kreditur.</p>

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