Legal Analysis Court Decision No.

43/
Pdt.G/2014/PN.Sda
“Commercial Paper Law”

Izaldi Fikri Muhammad NPM 1606864355

Brian Billy Nainggolan NPM 1606897712
Glenn Muhammad Rifqi NPM 1606897776
Muhammad Reza Dharmaputra NPM 1606864235
Bintang Pradana NPM 1606897694
Michael Bonardo S NPM 1606897851
Giorgio Ramadhan NPM 1606897763

Fakultas Hukum Universitas Indonesia

2018
Case Summary

The Plaintiff of the case is Bambang Setiawan, who have given power of attorney
to Ekkum, SH., MH, and Boby Hakim Yunior, SH.,MH. The plaintiff stays in
Jalan Mahakam RT05/RW03 Tanjung Sari, Sukorejo, Blitar, while the advocates
are from Perum Alam Hijau Lestari No.35 Singosari, Malang. The defendants are
H.Asikin, leader of Putri Gunung Jati Co-Op as (Defendant 1), and Putri Gunung
Jati Co-Op as (Defendant 2). Defendant 1 stays in Lembaga Pemasyarakatan
Kelas 1 of Sidoarjo. Defendant 2 is located on Jalan Raya Waru no.38 in Sidoarjo.

The case was submitted in 19th of March 2014 and was registered in the registrars
of the Sidoarjo district court in 21st of March 2014 under the registry number of
43/Pdt.G/2014/PN.Sda and was only revised once regarding the address of
Defendant 1. The case began in 31st of May 2012, after the plaintiff read the
advertisement in Harian Surya, about the Putri Gunung Jati Cooperative. The
plaintiff believed that the co-operative provides service of asset management, land
gentrification, property, oil and gas business, automotive, and financial instrument
businesses. The advertisement also claims that there is a guarantee of certificate of
promissory note made by PERURI with Billet that is protected by law. The
plaintiff then puts Rp;300.000.000 to Putri Gunung Jati Co-op with the intention
of creating a promissory note by 31st of may 2012 and ending in 3rd of December
2012 with the code PGJ 2162. The plaintiff and defendant 1 creates an agreement
in form of an addendum in 31st of may 2012 signed by defendant 1 with 2%
interest added to the agreement and that if no knowledge of withdrawal of money
from the commercial paper then it shall be automatically extended by Putri
Gunung Jati Co-Op. Apparently Defendant 2 did not fulfill the obligations and
instead put the given funds to a giro transfer BH 656907 on 3rd of December 2012,
however it is unable to be withdrawn due to insufficient funds. The plaintiff had
asked for detail regarding the progress of the transaction and had requested for
return of funds, however the funds had not been transferred nor returned, thus a

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tort had happened. As a consequence of this tort, the plaintiff had requested a
return in funds however it was not done, and the plaintiff had suffered material
and immaterial losses.

Due to the lack of certainty of the case the plaintiff suffered psychological
immaterial losses which were unable to be valued, but shall be valued on
Rp;500.000.000. The plaintiff thus pleas the confiscation of assets from
Defendants 1 and 2 which include the office on Letjen Sutoyo nomor. 1 Kav 4
Waru Sidoarjo, land with home certificate 1307 with width of 252 meters squared
on Delta Harmoni Sidoarjo residence owned by the defendants. Land with
certificate 254 with width of 74 meters square with situation picture no.
8383/1997. Lastly with land in Perumahan Delta Sari Indah AR.15 Wara
RT.07/RW09 on Sidoarjo. The plaintiff claims Rp;25.000.000 of duangsom for
every day the verdict given was not delivered. As according to articles 180 HIR
and 191 RBG, the verdict can be carried out while further legal remedies were
being made. With added interest, the material losses of the funds given by the
plaintiffs would amount to Rp;460.000.000.

The plaintiff thus pleas the district court of sidoarjo to fully fulfill the plea of the
plaintiff. To declare actions of the defendants as tort. To declare the various
evidences as valid. Lastly to declare conservatoir beslag to the requested assets of
the defendants.

During the court trials, the defendants had never attended nor had sent anyone to
attend in their name. The court’s verdict, with the assistance of 2 additional
witnesses and the sufficient evidence are as follows. The defendants are declared
to have never attended the court. The verdict of the plaintiff is thus verstek. The
defendants has done a tort. The defendants shall pay the plaintiff Rp.144.000.000.
The defendants must pay for the case in Rp.1.201.000. Lastly to deny further
pleas from the plaintiff. Thus is the decision made in 23rd of October 2014 by the
Head judge Djoko Soetatmo, SH., and judges Kadim SH.,MH., and
R.Moch.Fadjarisman, SH. And thus the verdict is made in 29th of October 2014.

Issue

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 1. Is the issuance of the commercial paper of both plaintiff and defendant valid?
2. Is the transfer of the commercial paper valid?
3. Can the plaintiff claim the commercial paper?

ISSUES

Regarding the issuance of promissory notes in the case Number 43 / Pdt.G/ 2014/
PN.Sda, the parties involved are Mr. Bambang Setiawan (plaintiff), H. Asikin
Purnomo (Defendant I), and Koperasi Gunung Jati (Defendant II). Basically, in
this case Mr Bambang as payee put in 300 Million Rupiah to KSU Putri Gunung
Jati as drawee through BCA KCU Sidoajo as drawer to issue a promissory note
starting from 31 May 2012 which will also end on 3 December 2012. Also,
between defendant I and Plaintiff, the defendant made an agreement to give 2%
every month from the money given by the plaintiff.

In order to issue a promissory note, there are formal requirements that needs to be
met. According to Article 174 of Commercial Code the requirements are:
1. both the clause regarding the appointed party, and the terms "order" or
"promissory note to appointed party" included in the text thereof and
stated in the language used in such document; (AB.18.)
2. unconditional promise to pay a certain amount of money;
3. determination of maturity date; (Commercial Code 132 etc., 175(2).
4. determination of the place where payment must be made; (Commercial
Code 103,126.)
5. name of the person receiving such payment or the appointed party to
whom such payment must be made; (Commercial Code 102, 109a.)
6. indication of date and the place of the order's signature; and
7. signature of the party issuing such document (signing).

From the requirements stated in the Article 174 of Commercial Code, every point
of it has to be fulfilled. The analysis will be stated below:

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 1. Both of clause regarding the appointed party, and the terms “order”
or “promissory note to appointed party” included in the text thereof
and stated in the language used in such document

From the case, it is stated that Plaintiff deposited Rp300.000.000,- to the KSU
Putri Gunung Jati (as the Defendant II) through the BCA KCU Sidoaijo to issue a
promissory note dated on May 31st, 2012. Also, as stated in the case, the
EVIDENCE II is a copy of the certificate of the promissory note with a serial
number PGJ 2162 which is accepted in the court. Therefore, the promissory note
is included the term “order” or “promissory note to appointed party” to fulfil the
paragraph (1) of the Article 174 of Commercial Code. And, the promissory note is
stated that printed by the Percetakan Uang Negara Republik Indonesia (PERURI)
and protected by the law.

2. Unconditional promise to pay a certain amount of money

According to the case, there is no unconditional promise to pay a certain amount

of money for the Plaintiff to the Defendant.

3. Determination of maturity date; (Commercial Code 132 etc., 175(2).)

Based on the case stated, the maturity date was set on December 3rd, 2012. So, it
does fulfil the requirement as it is stated its maturity/due date.

4. Determination of the place where payment must be made;

(Commercial Code 103,126.)

Based on the case, it is not stated about the place where the payment must be
made. Therefore, the Article 175 of Commercial Code has regulated in such
situation. Stated in the Paragraph (3) and (4) of Article 175 of Commercial Code,
the place where the payment must be made is located on where the promissory
note is signed. The case does not state whether the promissory note has been

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signed. Therefore, to fulfil the requirement without the place is stated, the
payment must be made where the payee (Mr. Bambang) signs the note.

5. Name of the person receiving such payment or the appointed party to

whom such payment must be made; (Commercial Code 102, 109a.)

According to the case, as the transaction is concluded, the promissory note with a
serial number PGJ 2162 (EVIDENCE II: a copy of the Certificate Serial No.
2162) states clearly that the payment must be made to Mr. Bambang Setiawan as
the payee (Plaintiff). Therefore, it does fulfil the requirement to name a receiving
person.

6. Indication of date and the place of the order's signature

This formal requirement requires the promissory note stating its date and the place
where the note is signed. From the case, it is stated that the establishment of the
promissory note was in May 31st, 2012. As also stated in the Article 175 of
Commercial Code, if the place of the signed date is not stated, the place will be
considered in where the signing process will be held.

7. Signature of the party issuing such document (signing).

Based on the case position no. 3, it is stated that the Plaintiff (Mr. Bambang
Setiawan) has deposited Rp300.000.000,- to KSU Putri Gunung Jati (Defendant
II) through the BCA KCU Sidoaijo by the KSU Putri Gunung Jati’s account and
to issue a promissory note. From the clause, “through the BCA KCU Sidoaijo”,
the issuer which is the BCA KCU Sidoaijo (the bank) has issued the note.
Moreover, the note is valid and applied by the parties. Therefore, the signature
requirement does fulfil this article.

As a conclusion, the issuance of the promissory note is correct and fulfils formal
requirements regulated in the Article 174 of Commercial Code. Despite its

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location where the payment must be made is not written, the Article 175 of
Commercial Code has regulated it. Therefore, the Article 175 of Commercial
Code as a supporting article where if there is a missing requirement occurred still
fulfils and applied as a promissory note.

Based on the Article 1365 of Civil Code, tort is an action causing a loss to a party,
the concerning party that does a tort is obliged to pay for the other party’s
damages. Molengraaff stated that torf is not only violating a law, but also the
method of decency and propriety.1 According to Mariam Darus Badrulzaman in
line with Hoffmann, the requirements to determine a tort is:2
1. There must be actions, both positive and negative actions, which
means that every act of doing or not acting;
2. The act must be against the law;
3. There is a loss;
4. There is a causal relationship between the act of the law and the
loss;
5. There is an error (schuld).

Based on the case position no. 4, there is another written agreement (ADENDUM)
dated on May 31st, 2012, which was signed by H. Asikin Purnomo, S.E.
(Defendant I) regarding the interest rate (2%) of the amount of the note for each
month given by the KSU Gunung Jati. Moreover, stated in number 3 of the
written agreement (ADENDUM), if there is no notification of payment at least
one week prior to the due date, the period of the contract will be extended.
However, in practice, the Plaintiff had notified the Defendant I as the chairman of
the KSU Putri Gunung Jati a week before December 3rd, 2012, but the
promissory note was not cashed as stated in the promissory note. On the contrary,
the Defendant had given a Bilyet Giro amounted for Rp300.000.000,- with its

1
Rosa Agustina, Perbuatan Melawan Hukum, cet. 1, (Jakarta: Program Pascasarjana Fakultas
Hukum Universitas Indonesia, 2003), hlm. 37
2
Mariam Darus Badrulzaman, Kompilasi Hukum Perikatan, (Bandung: PT Citra Aditya Bakti,
2001), hlm. 146-147

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serial number BH 656907 dated on December 3rd, 2012. In fact, the Bilyet Giro
was not cashed due to the funds not available.

According to the case, the advertisement of the KSU Putri Gunung Jati leaded the
Plaintiff to suffer losses. The Defendant I and II were intentionally giving an
empty Bilyet Giro just to make sure the Plaintiff was shut and given a certain
note. To the case, the Plaintiff suffered losses because the Plaintiff cannot cash his
Rp300.000.000,- with 2% of the interest. Moreover, the Plaintiff had asked for the
certainty to the Defendant I as the chairman of the KSU Putri Gunung Jati, but the
funds were not even cashed. As also stated by the case, the KSU Putri Gunung
Jati invested their money with no income and made the KSU Putri Gunung Jati
could not cash the money back to the Plaintiff.

“Bilyet Giro” is regulated in the “Peraturan Bank Indonesia” No. 18/41/PBI/2016,

and is in effect since the 1st of April 2017. As per article 1 no. 3 of the law
mentioned above, it is given a small explanation regarding “bilyet giro”, which is
basically a warrant from the drawer to the bank to do a book-entry a certain
amount of money to the recipient’s account.

Formal requirements of “Bilyet Giro”

The formal requirements are regulated in chapter 2 of PBI No. 18/41/PBI/2016, to

be exact article 3 and 4. Article 3 gives the list of the formal requirements that
needs to be met in order for it to be considered as “Bilyet Giro” and also its
effective date. In article 4 it is stated that any “Bilyet Giro” that does not fulfill the
requirements that are stated in article 3 paragraph (1), is not considered as a valid
“Bilyet Giro”.

In the case it is only stated that “Bilyet Giro” was given by the defendant as a
form of payment for the plaintiff, however it cannot be done because the funds
were not yet provided. So from that statement it can be seen that the “Bilyet Giro”
has probably met all the formal requirements, however lack the funds for it to be

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cashed in by the plaintiffs, which in turn means the plaintiff cannot receive the
money.

Chapter 3 of PBI No. 18/41/PBI/2016

In this chapter of the law, article 5 states the 4 parties in using the “Bilyet Giro”,
which are:

1. Drawee bank.
2. Drawer.
3. Recipient.
4. Acceptor bank.
In article 7 of this law, it is stated that the drawer is required to provide enough
funds during the effective grace period.

Long story short if we connect it to the decision, it seems the problem was not in
the formal requirements or that the “bilyet giro” cannot be used as a payment, but
the problem was the defendant failed to prepare the necessary funds for the
plaintiff to use the “bilyet giro” to receive the money.

Bilyet Giro is a transfer order as stipulated in the Decree of the Board of

Managing Directors of Bank Indonesia Number 28/32 / KEP / DIR dated July 4,
1995 concerning Bilyet Giro.

On the Bank Indonesia website, it was also explained that the Bilyet Giro was a
warrant from the customer to the depository bank to transfer the amount of funds
from the relevant account to the account of the name mentioned.

Empty Bilyet Giro is a Bilyet Giro that is indicated and refused to be Interested in
the deadline for the obligation to provide funds by the Attractor because the
balance is not enough or the Account has been closed.

The information that you get about the different aspects of the criminal from the
withdrawal of the check and the demand deposit account is empty, perhaps based

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on the regulation of Law No. 17 of 1964 concerning the Prohibition of Blank
Check Withdrawal ("Empty Check Law"), which specifically states that the crime
of withdrawal of blank checks is a crime (Article 3 of the Blank Check Law). The
regulation of the Blank Check Law causes differences in the criminal aspects of
withdrawal of blank checks by withdrawing empty giro checks. This is also
explained in the Commercial Law book written by Farida Hasyim (p. 273). But
we need to say that this Blank Check Law has been revoked by Government
Regulation (Perpu) Number 1 of 1971 concerning Revocation of Law No. 17 of
1964 ("Perpu No. 1 of 1971").

According to the Bank Indonesia History article: Payment System for the Period
of 1966-1983 issued by the Special Unit of Bank Indonesia Museum,, based on
the Blank Check Law, withdrawal of blank checks which are considered
economic crimes is threatened with severe criminal sanctions, namely the death
penalty , life sentence, or 20 years imprisonment. The threat of severe crime
turned out to cause public reluctance to use checks in payment traffic. Based on
these considerations, the government then issued Perpu No. 1 of 1971. So at this
time withdrawal of blank checks is no longer considered a crime. Practically there
is no significant difference between withdrawal of blank checks and empty check
accounts in terms of criminal law.

Bilyet Giro itself is a means of payment, while failure to pay debt can be
categorized as default, that is, a condition if one party in an agreement does not
carry out its performance or obligations and not because of an overmacht.

According to Article 1234 of the Civil Code ("KUHPer") the performance ts are
divided into three types:
a. Performance to submit something (this performance is found in Article
1237 KUHPer);
b. Performance to do something or do something (this is found in Article
1239 KUHPer); and

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 c. Performance for not doing or not doing something (this is found in Article
1239 KUHPer).

If someone has set an performance in accordance with the agreement, then the
obligation of that party to carry out or obey it. If he does not fulfill the obligations
as promised, he is said to be wanprestasi You can sue for the wanprestasi:

a. Engagement fulfillment;
b. Fulfillment of agreements and compensation;
c. Compensation;
d. Cancellation of mutual agreement;
e. Cancellation of compensation and compensation.

So, basically the failure of payment is included in the realm of civil law.
However, according to the Blank Check article, there is also the possibility of
failure to make such payments to commit a criminal act, for example fraud as
stipulated in Article 378 of the Criminal Code. For this latter case, if the elements
of criminal offenses are fulfilled and it is proven that the giving of checks or
bilyet giro is done to commit a crime, then the punishment can still be carried out.

CONCLUSION

In the case that decided on No. 43/ Pdt.G/2014/PN.Sda, the plaintiff that issued a
promissory note in value of Rp. 300.000.000,00 as payment of investment to the
defendant. This commercial paper is issued correctly and the transfer from the
plaintiff to defendant is valid. However, the defendant did not perform of any of
their promises to the investor. Then the defendant paid back the value of
investment in form Bilyet Giro. After the plaintiff wants to claim payment, there
are no funds in the Bilyet Giro. The plaintiff sues for tort for the non-performance
of the defendant. In our group analysis, the plaintiff should ask the court for the
performance of payment of compensation. Furthermore, the judge should have
order the defendant to pay the full amount of the Bilyet Giro to the plaintiff.

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