TINJAUAN HUKUM TERHADAP PELEPASAN HAK ISTIMEWA PENJAMIN DALAM PERJANJIAN JAMINAN PERORANGAN

Abstract

A personal guarantee (borgtocht) is one of the legal instruments used to ensure the fulfillment of a debtor’s obligations to a creditor. Under the provisions of the Indonesian Civil Code, a guarantor essentially possesses certain privileged rights that provide legal protection. However, in the practice of credit agreements, guarantors often declare a waiver of these privileged rights, which may affect their legal position and responsibilities. This study aims to analyze the legal review of the waiver of the guarantor’s privileged rights in a personal guarantee agreement. This research employs a normative legal research method using statutory and conceptual approaches. The research data were obtained through a literature study consisting of primary legal materials in the form of the Civil Code, secondary legal materials such as books, scientific journals, and other literature related to guarantee law, as well as tertiary legal materials that support the explanation of relevant legal concepts. The collected data were then analyzed qualitatively to obtain a comprehensive understanding of the legal position of the guarantor after waiving their privileged rights. The results of the study indicate that the waiver of privileged rights by the guarantor results in the loss of certain legal protections that are originally granted by the Civil Code. As a consequence of such waiver, the creditor may directly claim payment from the guarantor without first executing the debtor’s assets. This condition places the guarantor in a position that bears responsibility comparable to that of the debtor in fulfilling the debt obligation. Therefore, a clear understanding of the legal consequences of waiving privileged rights is essential to prevent potential losses for the guarantor.