Agricultural Land-pawning in Indonesian Traditional Law
Perspective
Maria K.
1
, Zulkifli Sembiring
1
and M. Husni
1
1
Faculty of Law, Department of Private Law Universitas Sumatera Utara, Medan, Indonesia
Keywords: Agricultural, Land-Pawning, Traditional Law
Abstract: Land transactions can be divided into real land transactions and transactions related to land. On the real land
transaction, the object is the land. In land-related transactions, the land is only a complementary. Forms of
land transactions can be divided into: (1) Pawn (gade-grondverpanding), (2) Sale (menjuallepas -
grondverkoop), (3) Renting the land with rental payments in advance (jualtahunan - grondverhuur meet
vooruitbetaaldehuur - schat). Land Pawning is the delivery of a piece of land belonging to someone for
another person for a certain period of time, also followed by the payment by the landowner to take the land
back.
1 INTRODUCTION
The existence of indigenous peoples cannot be
separated with the land. There are two things that
cause the land to have a very important position in
customary law, that is because of the "nature" and
"factor" of the soil itself (Wulansari, 2016). The
relationship between indigenous peoples with their
land creates a right that gives the community a legal
capability, the right to use the land for the benefit of
society (Hutagalung, 2005). This is the original and
main right in customary land law and covers all the
land within the customary law community which is
also regarded as the source of other land rights
within the community of customary law and may be
owned by all members of the customary law
community. Land has an important position because:
 The nature of the land where the soil is the only
thing of wealth which, though under any
circumstances, remains in its state, even more
profitable.
 The fact that the land is a reality of land is a
means of dwelling for legal partnership and all
its members as well as giving livelihood to its
owner.
 The Religious Magical Aspect of Land where
the soil is a unity wherein later owners will be
buried after death as well as the ancestral site
of fellowship for several generations before
(Wiranata, 2005).
The closeness of the community to the land in
various tribes in Indonesia can be seen in the
Minangkabau ethnic where it arises the perception
that land is one of the factors that unites the
Minangkabau people (Aliasman, 2005).
2 AGRICULTURAL
LAND-PAWNING
Land transactions are distinguished from land
transactions and land-related transactions. On land
transactions the object is land, while other
agreements that follow are complementary. On
transactions related to the land exactly the opposite,
namely the principal agreement is another
agreement, while the land is only a complementary
agreement. Basic forms of land transactions can be
divided into: (1) Pawn (gade - grondverpanding), (2)
Sales (sell off - grondverkoop), (3) Rents of land
with advance rental payments (annual selling -
grondverhuur met vooruitbetaaldehuur - schat)
(Ridwan, 1982).
In land-pawning, the time of redemption is up to
the landowner without any time limit or expiration
and even the right to redeem can be transferred to
the heirs of the landowner.
Apart from that, land-pawning also have the
nature of extortion in its implementation. Because as
long as the landowner has not been able to redeem
his land,the lien holder still controls the land. Many
K., M., Sembiring, Z. and Husni, M.
Agricultural Land-pawning in Indonesian Traditional Law Perspective.
DOI: 10.5220/0010092116311634
In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramification Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages
1631-1634
ISBN: 978-989-758-449-7
Copyright
c
 2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved
1631

land-pawning last for years, even tens of years
because landowners have not been able to make
redemption. This means that the lien holder can
benefit and get the results of the land that could be
greater than the amount of money given to
landowners at the time of the sale of land.
Land-pawningis one of the products derived
from customary law then the arrangement also
according to customary law. Customary law is the
original law of the indigenous people, which is a law
that lives in an unwritten form and contains the
original national elements that is the social and
familial nature which is based on balance and is
covered by the religious atmosphere (Panggabean,
2011). According to Ter HaarBzn., Pledge is a
transaction which in the transaction the land is
handed over to another party against a payment in
cash, with the promise that the person who submits
will have the right to order the return of the land
through equal payments.
There is a tendency to distinguish between
ordinary mortgages and mortgages over time, where
the latter tends to provide some sort of benchmark to
the temporary nature of the transfer of rights to the
land (Soekanto, 2009).
The lien and lease rights in this connection arise
because of a contractual agreement between the two
parties on the land. As long as it has not been
redeemed by the landowner, so long as the right to
land becomes the property of the lender, as well as
the lease rights, that property rights continue until
the lease agreement is broken on the land.
On a regular pledge, then the land can be
redeemed by the mortgage at any time. The
restriction is one year of harvest, or if on the ground
there are vegetation that has not been picked up. In
this case, the receiver of the pledge shall not be
entitled to claim, so that the pawner shall redeem his
land at a certain time. In order to protect the interests
of the mortgagee, he can at least perform two
actions: (1) applying the mortgage
("onderverpanden"), in which the mortgagee pawns
the land to a third party. (2) transferring
("doorverpanden") is an act whereby the mortgagee
pawns the land to a third party and then the third
party replaces the position of the receiver of the
pledge to further deal directly with the pawnshop.
In Tapanuli also known other kinds of pawn
which is commonly called dondon shrink. On
mortgage shrinkage, the redemption of the land is
done by installment with the yield of the land
concerned. Therefore, at each harvest, the price of
the mortgage will shrink so that at any given time
the land will return to the pawns without redeeming
it. On mortgage shrinkage, the redemption of the
land is done by installment with the yield of the land
concerned. Therefore, then at each harvest, the price
of the pledge will shrink, so that at a certain time the
land will return to the pawns without redeeming it.
Based on the customary law of land pledge is a
justified way in the transfer of land rights so that
until now still live like in Karo Regency. The terms
of transfer of ownership of land in customary law
apply also in the matter of pledge, considering the
pledge as one of the transfers of property rights. The
conditions are: cash and light, ie the participation of
the village head to know the existence and in the
legal framework and the protection of the parties
involved in the transaction.
3 AGRICULTURAL
LAND-PAWNING IN
TRADITIONAL LAW
PERSPECTIVE
Land liens in Indonesian legislation system have
been regulated in Law Number 5 Year 1960 on
Basic Regulation of Agrarian System especially in
Article 16 paragraph (1) letter h. Where the land lien
belongs to one of the temporary land rights.
However, in the law known as BAL, these liens are
not given a clear understanding. In order to obtain
more explanation, below will be raised some
opinions about the understanding of this land lien.
According BoediHarsono, Pawn is a legal
relationship between a person with the land
belonging to another person, who has received
uanggadai from him. As long as the pawn money
has not been returned, the land is controlled by a
"pawnbroker". During that time the whole land
became the right of the pawnbroker. The refund of
lien or so-called "redemption", depends on the will
and ability of the mortgaged landowner.
According to Effendi Perangin, Pawn Land
contains an exploitative element, since the proceeds
received by the pawn holders of the land in question
are generally much larger than what is a proper
interest from the mortgage received by the
landowner.
According to A.P. Parlindungan, after mastering
the rice fields for 7 years that the receiver of pledge
(pawn holders) is enough to taste the rice fields that
have been to get back the lien that has been issued.
From the above explanation it can be seen, that in
the implementation of these liens on the other hand
has the element of help-help, but on the other hand
contains the nature of extortion that could harm the
landowner.
ICOSTEERR 2018 - International Conference of Science, Technology, Engineering, Environmental and Ramification Researches
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Redemption is done by returning the pawn
money that was received by the giver of the pawn. If
the mortgage of agricultural land, the ransom is not
as much as a pawn money, but as big as according to
the formula contained in Article 7 paragraph (2) of
Law Number 56 Prp. Year 1960 (Ruchiyat, E.,
2006).
4 CONCLUSIONS
The position of customary law in national land law
is customary law as a source of development of
national land law as contained in the consideration
and Article 5 of the BAL, meaning that conception,
asa, and legal institution derived from customary
law are used as the main ingredient for formulating
norms of national land law as set out in the LoGA.
In addition to its function as a primary source,
customary law also serves as a complement when
norms contained in national land law have not
regulated certain matters. Since the legislator
assumes that the pledge of land contains an element
of extortion, the rule of article 7 IJU no. 56 / Prp /
1960 which aims to eliminate land pledge
transactions based on Indonesian customary law, but
the judiciary institution in its application is still
inconsistent resulting in dualism, namely land
pledge based on national agrarian and customary
law. Because the boundary between the two is
unclear, it raises the uncertainty of legal protection
and the legal relationship between the two.
The Customary Law System is a largely
unwritten legal system (non-statutoir) so that its
implementation in one area with another is not
always the same. Another case with the system of
Civil Law West and BAL, which is very concerned
with the implementation of certain activities in
written form. Djaja S. Meliala explains, Customary
Law recognize pawn agreement is different from
mortgage in KUH. The Civil Code, the pledge under
Customary Law is not an accessoir agreement, but a
stand-alone agreement (Djaja, 2008).
Regarding the pledge of agricultural land, there is an
understanding given the legislation. Pawn of
agricultural land, in the explanation of Perppu No.
56 of 1960 on Stipulation of Land Area of
Agriculture, which then passed into law, mentioned
that the mortgage is the relationship between a
person with the land belonging to someone else, who
have money debt to him. As long as the debt is not
paid in full, the land remains in the lender's lending
power.
In Law No. 5 of 1960 on the Basic Agrarian
Law, the explanatory section states that the use of
land on a lease basis, profit-sharing agreement,
pledge and so on shall not be submitted to the
agreement of the parties concerned on the basis of "
freefight ", but the ruler will give provisions on the
manner and conditions, in order to meet the
considerations of justice and prevented ways of
extortion.
Regarding the pledge of agricultural land, there is an
understanding given the legislation. Pawn of
agricultural land, in the explanation of Perppu No.
56 of 1960 on Stipulation of Land Area of
Agriculture, which then passed into law, mentioned
that the mortgage is the relationship between a
person with the land belonging to someone else, who
have money debt to him. As long as the debt is not
paid in full, the land remains in the lender's lending
power.
In Law No. 5 of 1960 on the Basic Agrarian
Law, the explanatory section states that the use of
land on a lease basis, profit-sharing agreement,
pledge and so on shall not be submitted to the
agreement of the parties concerned on the basis of "
freefight ", but the ruler will give provisions on the
manner and conditions, in order to meet the
considerations of justice and prevented ways of
extortion.
Therefore, Law Number 56 Prp 1960 came into
existence. In Article 7 the regulation states that the
land that has been pawned for 7 years is returned to
the owner, without the obligation to pay the copy
money.
Pawn of agricultural land, in the explanation of
Law Number 56 Prp Year 1960 on Stipulation of
Land Area of Agriculture, stated that what is meant
by the mortgage is the relationship between a person
with the land belonging to someone else, who have
money debt to him. As long as the debt has not been
paid off, the land remains in possession of the
money lender ("pawn-holder"). During that time the
entire land proceeds into the right of the mortgage
holder, which is thus the interest of the debt. In Law
Number 56 Prp Year 1960 Article 7 states that:
Whoever controls agricultural land with liens which
at the time of entry into force of this Regulation has
lasted 7 years or more shall return the land to its
owner within a month after the existing crops are
harvested, with no right to demand payment of
ransom. Regarding the liens which have not been in
force for 7 years, the landowner has the right to
request it back at any time after the crops are
harvested, paying a ransom of magnitude calculated
according to the formula: provided that at any time
Agricultural Land-pawning in Indonesian Traditional Law Perspective
1633

the liens have lasts 7 years then the pawn holders are
obliged to return the land of the mortgage without
payment of ransom, within a month after the existing
plant is harvested. The provisions of paragraph 2 of
this article shall also apply to liens held after the
entry into force of this Regulation. The provision
that the land pledged for 7 years must be returned
without paying the ransom, in most cases, the
Supreme Court has disconnected. This can be seen
in the Supreme Court's decision. 38 K / Sip / 1961
dated 17-5-1976, where the legal rule can be taken,
namely that although in this case the claimed land is
the yard with the house on it according to the
Supreme Court article 7 No. 5o / 1960 can be treated
anoloog so that the yard and house must be returned
to the owner without giving the loss. Similarly, the
Supreme Court decision No. 903 K / Sip / 1972
dated 10-10-1974. It is found that the terms of liens
contained in Law Number 56 Prp Year 1960 Article
7 are the same as buying and selling of the land,
therefore the land must be returned without ransom.
Or also on the Supreme Court's decision. 1272 K /
Sip / 1973 dated 01-04-1975, with the rule of law
that is Law Number 56 Prp Year 1960 Article 7 is
forcing the pawn of agricultural land that has lasted
7 years or more, must be returned to the owner
without payment of ransom and this cannot be
attenuated because it has been agreed by both
parties, because it is against the principle of the
pawning institution.
According to customary law, the mortgage-
pawning of the land is only done among indigenous
Indonesians. However, due to the principle set forth
in Article 9 paragraph (2), which excludes the
distinction of indigenous citizens and foreign
descendants in obtaining a right to land, it is
presumed that liens after the coming into effect of
the Basic Agrarian Law may also be owned by
citizens Indonesian foreign descent.
The liens both on agricultural land and the original
building land are regulated by customary (agrarian)
law. Later in the Basic Agrarian Law the liens
mentioned in Article 53 are linked to Article 52
paragraph 2 of the Basic Agrarian Law, which
provides that as a temporary right the right shall be
regulated to limit its properties contrary to the Basic
Agrarian Law. In fact, it must be cultivated in a
short time because the liens contain elements that
are extortion. As the implementer of Article 53 of
the Basic Law on Agrarian Law, the Rule 7 of Law
No. 7/1999 is passed. 56 Prp Year 1960 on
Stipulation of Agricultural Land Size regulating the
return and redemption of pawned agricultural land
(criminal sanction set out in Article 10). This article
also aims to eliminate land pledge transactions based
on Indonesian customary law, but the judiciary in its
application is still inconsistent resulting in dualism,
namely land pledge under national agrarian law and
customary law. Because the boundary between the
two is unclear, it creates the uncertainty of legal
protection and the attractive legal relationship
between the two. Therefore, it is necessary to study
the effect of land lien regulation on the
implementation of land pledge in customary law.
ACKNOWLEDGEMENTS
This research was fully supported by Universitas
Sumatera Utara (Non PNBP Fund 2018).
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