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International Asia Of Law and Money Laundering
Vol. 1 No.3 September 2022 P-ISSN 2829-1654
E-ISSN 2829-517X
202
Legal Analysis Of The Lease Agreement
Farid Azmi
ARTICLE INFO
ABSTRACT
Keywords:
Legal , Analysis, Lease Agreement
Leasing is a form of business that can be used as an alternative to
overcome capital difficulties in the framework of financing a company.
The presence of leasing for companies has an important role in helping
entrepreneurs in Indonesia, both for small, medium and large
businesses. Through leasing activities, these entrepreneurs will quickly
be able to overcome the financing method to obtain the equipment and
capital goods they need. With less burdensome requirements and a
flexible funding system, entrepreneurs love it. This condition, among
others, causes the leasing business in Indonesia to develop rapidly.
Leasing is one of the business fields included in the scope of financing
institutions. Based on the decree of the Minister of Finance of the
Republic of Indonesia number 1169 / KMK.01/1991 regarding leasing
business activities, what is meant by leasing or leasing is financing
activities in the form of capital goods provision, either on lease and
option rights (finance lease) or operating lease for use by leasing for a
certain period of time based on periodic payments.
Date received : 15 Agustus 2022
Revision date : 18 Agustus 2022
Date received : 22 Agustus 2022
INTRODUCTION
The rapid economic development in the era of
globalization today requires every company to be
able to compete in doing business development.
Companies in developing their business can use
different ways, one of which is to buy the means
(capital goods) that support the smooth operation.
To provide the necessary goods, the company has
several alternatives that can be used, among
others:
1. Buy cash, or
2. Borrowing through a Bank, or
3. Obtaining investment financing through leasing
or leasing
Buying cash can be done if the company has
sufficient funds. However, it is not uncommon for
companies to experience problems in terms of lack
of capital considering the amount of funds that
must be spent on the procurement of capital goods
is relatively large. Capital increase in a company can
be done by borrowing through a bank, but this
method is considered less effective because the
procedure is difficult to fulfill so that it takes a
relatively long time, the debtor's obligation to
include Collateral, and the limited ability of the
bank's own capital. Meanwhile, leasing is a more
flexible institution compared to banking institutions,
because the procedure is simpler.
Leasing is a form of business that can be used as an
alternative to overcome capital difficulties in the
framework of financing a company. The presence of
leasing for companies has an important role in
helping entrepreneurs in Indonesia, both for small,
medium and large businesses. Through leasing
activities, these entrepreneurs will quickly be able to
overcome the financing method to obtain the
equipment and capital goods they need. With less
burdensome requirements and a flexible funding
International Asia Of Law and
Money Laundering
International Asia Of Law and Money Laundering
Vol. 1 No.3 September 2022 P-ISSN 2829-1654
E-ISSN 2829-517X
203
system, entrepreneurs love it. This condition,
among others, causes the leasing business in
Indonesia to develop rapidly.
The involvement of several parties in the leasing
agreement, namely the lessor as the party who
rents the leasing object, the lessee as the tenant,
the supplier as the provider of the goods and the
bank as the funder, in the course of time when the
implementation of the agreement sometimes faces
legal problems. No doubt, alternative options by
way of leasing (leasing) in Indonesia can be said to
be still new, so the legal protection offered by the
government is still inadequate, the existing rules on
leasing new stage of Ministerial Decree. This rule
becomes ineffective in the event of problems of the
parties involved in the leasing financing agreement.
The legal protection of the parties is limited to the
good faith of each party.
This condition causes the preparation of the clause
of the leasing agreement made in the form of a
standard agreement by the lessor only oriented to
the principles of freedom of contract agreement.
This needs to be observed so that leasing as an
alternative financing for business activities can
guarantee legal certainty for the parties
implementing the agreement, because one of the
legal objectives is to ensure legal certainty.
METHOD
The research method used in writing this law is a
normative juridical approach. Normative juridical
approach is a study that uses secondary data
sources / data obtained through library
materials.This normative legal research usually
includes: research on legal principles, research on
legal Systematics, research on vertical and
horizontal synchronization levels, Comparative Law
and legal history. The method of this approach is
carried out by studying the legal norms in
legislation.
RESULTS AND DISCUSSION
Legal Protection Of The Lease Agreement
Leasing institutions are not known in the Civil Code,
but they are known in practice. Historically, Leasing
was first introduced in the United States in 1877, by
The Bell Telephone Company to market its products,
namely telephone equipment. Because at that time
the company is difficult to obtain medium and long
term credit. In 1952 Leasing experienced rapid
development in the United States, namely with the
establishment of the United State Leasing
Corporation. Around 1960 Leasing activities
developed in Western Europe.
While in Indonesia, this institution is formally still
relatively new, which only existed in 1974 with the
issuance of several ministerial decrees regulating
leasing, namely:
a. Joint decree of the Minister of Finance, Minister
of Industry, and Minister of Trade No. 122, No. 32,
No. 30 of 1974 dated February 7, 1974 on Business
Licensing Leasing.
b. Decree Of The Minister Of Finance No. 649 of
1974 dated May 6, 1974 on Business Licensing
Leasing.
c. Decree Of The Minister Of Finance No. 650 in
1974 dated May 6, 1974.
d. Decree of the Minister of Finance of the Republic
of Indonesia number 1169 / KMK.01/1991 on
leasing activities.
In leasing transactions, the legal relationship
between the subjects of leasing consists of the
lessor, lessee and supplier. Meanwhile, the object of
the agreement is capital goods purchased by the
lessor at the request of the lessee. Capital goods
can be either movable or immovable goods.
However, in practice, leasing does not always run
smoothly because there are also various problems
when leasing takes place which are often carried
out by the lessee, including: delaying lease
payments, not paying fines for late lease payments,
transferring, selling, making the goods as debt
collateral with the aim of, among others, releasing
themselves from violated lease payments,
eliminating goods and so on.
In the event of a dispute, there are several ways
that can be used to resolve problems arising from
both parties, namely in the following ways:4 1.
Peace. Peace here means that between the lessor
and the lessee entered into a peace itself outside
the court. The implementation of the peace
depends on both parties so that there is agreement
from both parties so that this dispute does not
proceed to court. However, the peace made by both
parties here is only in force as an agreement of both
parties which if not obeyed by one party then it
must be submitted through the process in court. So
there is no guarantee that one day there will be no
dispute again. In the dispute of leasing agreement if
there is peace between the two parties, the lessor
will take back the goods owned by the lessee. 2.
Court. If the lessor's attempt to take back his
belongings controlled by the lessee cannot be
carried out peacefully (negotiation) then in this case
the lessor can resolve this issue through the
competent District Court. To recover the rights of
the lessor who has suffered losses due to breach of
promise from the lessee as agreed in the agreement
and also.
International Asia Of Law and Money Laundering
Vol. 1 No.3 September 2022 P-ISSN 2829-1654
E-ISSN 2829-517X
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In the event of a dispute, there are several ways
that can be used to resolve problems arising from
both parties, namely in the following ways:4 1.
Peace. Peace here means that between the lessor
and the lessee entered into a peace itself outside
the court. The implementation of the peace
depends on both parties so that there is agreement
from both parties so that this dispute does not
proceed to court. However, the peace made by both
parties here is only in force as an agreement of both
parties which if not obeyed by one party then it
must be submitted through the process in court. So
there is no guarantee that one day there will be no
dispute again. In the dispute of leasing agreement if
there is peace between the two parties, the lessor
will take back the goods owned by the lessee. 2.
Court. If the lessor's attempt to take back his
belongings controlled by the lessee cannot be
carried out peacefully (negotiation) then in this case
the lessor can resolve this issue through the
competent District Court. To recover the rights of
the lessor who has suffered losses due to breach of
promise from the lessee as agreed in the agreement
and also possibly as a result of the actions of the
lessee against the law, the lessor, among others,
can sue the court for the court: a. Doing sita
revindicatoir on goods that are the object of the
lease agreement, with the intention to take back the
goods belonging to the lessor who is in the power of
the lessee, in order to then be handed over to the
lessor. b. Punish the lessee to pay compensation to
the lessor for losses suffered as a result of default
and/or against the law that has been done by the
lessee in the form of rent that is still in arrears,
outstanding fines plus interest, all rent that is still
running until the last installment, residual value of
the leased goods, collection costs including litigation
costs, and interest. c. Placing bail on the lessee's
property to guarantee the payment of damages and
other claims mentioned above. d. Transfer all risks
to the lessee. e. Punish the lessee to pay all costs of
the case.s f. Ask the judge to cancel the lease
agreement or declare the agreement void due to a
breach of promise.
3. Arbitration. To seek settlement of a dispute by
filing a lawsuit in court is a way that takes a very
long time. In addition to many procedures that must
be done, for example on how to call, how to deliver,
also how to check, and so on. If a decision has been
obtained from the court of First Instance
examination does not mean that the dispute/dispute
has been resolved because the litigants if they are
dissatisfied with the decision and then appealed to
the court above or higher and can also be cassated
in the Supreme Court. Therefore, another
alternative that can be used in the settlement of
disputes/disputes this leasing agreement is through
a body outside the court called arbitration. The
settlement in this arbitration body can be from the
beginning the parties have agreed to be included in
the clause of the main agreement or the agreement
is done after a dispute arises that a special deed is
made. Arbitration is an out-of-court settlement that
is very suitable in the world of trade/business,
because arbitration processes the settlement of
cases quickly because there is no appeal and
Cassation so that the arbitrator's decision is the final
decision, at this arbitration body the arbitrators are
experts in their fields, the examination at the
arbitration body is closed. So for the settlement of
leasing agreement disputes the parties involved can
use the services of the arbitration body provided
that the relevant agreement/contract includes a
provision (article) which states that any dispute or
dispute that may arise from the leasing agreement
will be submitted to arbitration for termination. The
provision or article in the agreement/contract is
called Arbitration Clause and for the arbitration
clause, BANI (Indonesian National Arbitration
Board) advises the parties who want to use the
settlement on the Arbitration Board to include it in
their agreement.
CONCLUSION
Leasing is an equipment funding, namely financing
activities provided by the lessor in the form of
equipment or capital goods needed by the lessee to
run his business. In Indonesia, the formal existence
of leasing in Indonesia is still relatively new, namely
with the issuance of joint decree of the Minister of
Finance, Minister of Industry, and Minister of Trade
No. 122, No. 32, No. 30 of 1974 on Business
Licensing Leasing.The occurrence of leasing
transactions is motivated by insufficient funds of the
lessee to purchase capital goods, so contact the
lessor to finance it. In terms of regulation, the laws
and regulations governing the lease is still
inadequate until now there has been no law-level
regulations that specifically regulate the lease. As a
business institution in the field of financing, leasing
comes from various fields of law, both in the form
of agreements (civil) and legislation (public),
especially relevant to leasing activities.
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