Cession is the transfer of intangible movable property (intangible goods) in the form of Registered Receivable to the third party which a person sells their claim rights to another person.
According to Subekti, cession is the transfer of receivables rights from a past creditor to a new creditor, the transfer must be executed through an authentic or private deed, thus it cannot be simply verbal or through the delivery of the receivables. The transfer of the receivables becomes effective for the debtor only when the cession deed is officially notified (betekend) to the debtor.
Furthermore, as stated by the Article 613 of the Civil Code, cession defined as,
“the transfer of Registered Receivable and other intangible assets must be carried out through an authentic or private deed which transfers the rights over those things to another person. This transfer does not have any legal consequences for the debtor until they have been notified of the transfer or accepted the transfer in writing or acknowledged it. The delivery of debt securities for indebtedness should be done through physical handover, debt securities for indebtedness are transferred through submission and endorsement of the paper.”
Based on the expert’s delineation above and its relation to the Article 613 of the Civil Code, it can be concluded that the creditor can transfer receivables to other parties through the method of cession, thereby designating the new creditor. Therefore, there are at least three parties involved in cession: First, the party transferring the registered receivable or claim right (origin creditor), known as the cedent; second, the party receiving the transfer of the registered receivable or claim right (the new creditor), known as the cessionary; and third, the party who owes the debt (the debtor), known as the cessus.
In front of we delve further into the issues related to the transfer of partial receivables in the Suspension of Debt Payment Obligations (hereinafter referred to as “PKPU“), it is necessary to examine first the PKPU itself as stipulated in the Articles 222 to 294 of Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations (hereinafter referred to as the “Bankruptcy Law“). The requirement for filing a PKPU petition is to have a minimum 2 (two) or more creditors which one of whom has an overdue debt that can be claimed and can be proven in a simply as stipulated in the Article 222 paragraph (2) in conjunction with the Article 8 paragraph (4) of the Bankruptcy Law.
The provisions of the Article 613 of the Civil Code do not regulate the extent to which receivables can be transferred which means creditors are given the freedom to transfer receivables in whole or in part to other parties, as long as the transfer of receivables is carried out by deed and has been notified to the debtor. This conditions are certainly a legal loophole that can be exploited by creditors in the context of submitting a PKPU and/or Bankruptcy Petition regarding fulfilling the requirements for having 2 (two) or more creditors.
In case that there is a partial transfer of the receivables will place the Other Party receiving the transfer of receivables as a creditor of the debtor who will be petitioned for Suspension of Debt Payment Obligations. The transfer of receivables will be legally valid since the notification has been made to the debtor is in compliance with the provisions of the Article 613 of the Civil Code and the Supreme Court Circular Number 07 of 2012 concerning the Formulation of Plenary Meeting Results for Courts in the Special Civil Chamber Meeting, hereinafter referred to as the “Circular Number 07 of 2012” as follow:
“When the Cession be considered as a Creditor of the Debtor being petitioned for bankruptcy? After the transfer is notified to the Debtor or is agreed upon and acknowledged in writing (Article 613 paragraph (2) of the Civil Code).”
Therefore, the fact is the Commercial Court acknowledges the practice of partial transfer of receivables by a Creditor to another party in the context of filing a PKPU Petition. This was found in a case in the Central Jakarta Commercial Court as stated in the Commercial Court Decision at the Central Jakarta District Court Number 310/Pdt.Sus-PKPU/2020/PN Jkt.Pst. which the consideration clauses of the decision state:
“Considering that based on Exhibit P-9 and the Respondent’s Evidence, Exhibit T-6, it is clear that the PKPU Petitioner who transferring part of his claim rights to ADREW WINATA KHOO, which was done by means of a notarial deed, … has notified the transfer of the claim rights to the respondent, … thus that the position of the Cessie holder can be recognized as another creditor who has the right to claim from the Debtor.”
Legal consideration of the Commercial Court Decision has given the legal basis through the partial transfer of receivables by a Creditor to another party hereinafter that party can be classified as the other creditor, thus fulfillment of the requirements for the PKPU Application to be granted.
However, The Commercial Court in the practice also rejected a PKPU application by a PKPU applicant who had transferred part of his receivables to another party. Nonetheless, this is not because the Commercial Court does not justify the action of transferring some of the receivables to other parties, it is just that the PKPU Petitioner made a mistake in the PKPU Petition submitted since the PKPU Petitioner stated that they had receivables with a value that included the value of the receivables that had been transferred to the Other Party, thus the Commercial Court view that the receivables owned by the PKPU Applicant and other creditors originate from the same source.
This was found in a case at the Semarang Commercial Court as stated in the Commercial Court Decision at the Semarang District Court Number 42/Pdt.Sus-PKPU/2021/PN Niaga Smg. which the considerations for the decision state:
“Considering that, in the opinion of the Panel of Judges, though it has been transferred/accessed to Ahmad Andreas because it comes from the same source, the substance is only one debt, thus it cannot be reffered to be another creditor...”
In the event with the annotate above, currently the Commercial Court acknowledge the action of transferring part of the receivables by creditors to other parties, thus this could become a legal loophole for PKPU applicants who have difficulty finding other creditors, which the PKPU applicant can transfer part of his receivables to other creditors before submitting the PKPU application. However, carrying out this action must be prepare things as follow:
- The partial of transfer receivables should be carried out with an Authentic Deed which made in front of a Notary considering that the Authentic Deed is perfect evidence as stipulated in the Article 1870 of the Civil Code.
- The partial of transfer receivables has been approved or acknowledged or notification has been made of the Deed of Agreement for the Transfer of Receivables by the cedent and cessionary to the cesus as stipulated in the Article 613 of the Civil Code
- In the PKPU Application, it is necessary to separate the value of the claim between the creditor (cedent) as the PKPU applicant and other creditors as the cessionary.
The provisions above have been carried out by the PKPU Applicant, then it could potentially comply with the provisions of the Article 222 paragraph (2) in conjunction with the Article 8 paragraph (4) of the Bankruptcy Law.
Hence the discussion in this article, if there are things you want to discuss regarding the Transfer of Receivables through the Cessie mechanism or in the case of submit a PKPU or Bankruptcy Application in order to obtain repayment of receivables, then you can contact us to get further information.