GADAI & FIDUSIA ? PERBEDAAN DAN PERSAMAANNYA!!!!

Summary

In this video, the host explains the key differences between two forms of collateral in Indonesian law: **gadai** (pawn) and **jaminan fidusia** (fiduciary guarantee). While both serve as security for loans, **gadai** involves physical possession of movable goods (e.g., vehicles, jewelry) by the creditor, whereas in **jaminan fidusia**, the debtor retains possession of the pledged goods but transfers ownership rights to the creditor. The video further explores the legal concepts, their applications in loan agreements, and how they can be enforced in case of default. This explanation is aimed at students and the general public interested in understanding legal terms related to collateral.

Takeaways

• 😀 Gadai (Pledge) is a form of collateral where the debtor hands over a movable object to the creditor, but retains ownership until the debt is repaid.
• 😀 Jaminan Fidusia (Fiduciary Guarantee) involves transferring ownership of the collateral to the creditor, but the debtor retains possession and use of the asset.
• 😀 The main difference between Gadai and Jaminan Fidusia lies in possession: Gadai requires the creditor to physically hold the collateral, whereas Fiducia allows the debtor to keep possession.
• 😀 Gadai is regulated under the Civil Code (KUHPerdata), specifically Article 1150, while Jaminan Fidusia is governed by Law No. 42 of 1999.
• 😀 Both Gadai and Jaminan Fidusia are used as security for loans or debts, ensuring the creditor can recover the loan amount if the debtor defaults (wanprestasi).
• 😀 The object of Gadai is limited to movable goods, such as vehicles or electronics, while Jaminan Fidusia can involve both movable and immovable property, including intangible assets like intellectual property.
• 😀 In the case of Gadai, the creditor physically holds the collateral, but in Jaminan Fidusia, the debtor keeps possession of the asset, and the creditor's rights are legally recorded.
• 😀 Both Gadai and Jaminan Fidusia are considered accessory agreements, meaning they are supplementary to the main loan or debt contract.
• 😀 In practice, when securing a loan, institutions may ask for either Gadai or Jaminan Fidusia as collateral. It is crucial to understand the type of collateral involved to know your rights and obligations.
• 😀 Both Gadai and Jaminan Fidusia require formal documentation and registration to be legally valid, such as a pledge agreement or fiduciary guarantee deed.

Q & A

What is the main difference between Gadai and Fidusia?

The main difference is in how the object is handled. In Gadai, the pledged item is handed over to the creditor as collateral, while in Fidusia, the debtor retains possession of the item, but the ownership rights are transferred to the creditor.

What types of objects can be used as collateral in Gadai?

In Gadai, the collateral is typically limited to **movable property**, such as vehicles (cars or motorcycles). These items are physically handed over to the creditor.

What types of objects can be used as collateral in Fidusia?

In Fidusia, collateral can include **movable property** (both tangible, like vehicles, and intangible, like intellectual property) as well as **real property** (e.g., buildings), as long as the property is not encumbered by a mortgage.

What does 'accessory agreement' mean in the context of Gadai and Fidusia?

An accessory agreement refers to the fact that both Gadai and Fidusia are additional agreements that rely on a primary contract, such as a loan agreement. Without the underlying loan agreement, there would be no need for the collateral agreement.

How does the process of execution differ between Gadai and Fidusia?

In both Gadai and Fidusia, if the debtor fails to fulfill the loan obligations (wanprestasi), the collateral can be executed (i.e., taken and sold) to recover the debt. However, in Gadai, the creditor has direct possession of the item, while in Fidusia, the debtor retains possession but the creditor holds legal ownership.

Can a building be used as collateral in Gadai?

No, Gadai only applies to movable property, such as vehicles. Buildings cannot be used as collateral in Gadai. However, a building can be used in Fidusia if it is not burdened by a mortgage.

What is meant by 'wanprestasi' in the context of Gadai and Fidusia?

'Wanprestasi' refers to the failure of the debtor to fulfill their obligations under the loan agreement, such as failing to repay the debt on time. In this case, the creditor can execute the collateral (whether Gadai or Fidusia) to recover the debt.

In what legal framework is Gadai regulated?

Gadai is regulated by the **Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata, KUHP)**, specifically under Article 1150.

In what legal framework is Fidusia regulated?

Fidusia is regulated by **Undang-Undang Nomor 42 Tahun 1999**, which governs the system of fiduciary guarantees in Indonesia.

What is the role of the 'kreditur' and 'debitur' in Gadai and Fidusia?

In both Gadai and Fidusia, the 'kreditur' (creditor) is the party providing the loan, and the 'debitur' (debtor) is the party who owes the money and pledges collateral to secure the loan. In Gadai, the debtor hands over the collateral, while in Fidusia, the debtor retains possession but the creditor holds legal ownership.