The existence of collateral or practical collateral is considered as a mere form of repayment guarantee given by the debtor to the creditor. But the most important function of the existence of collateral / collateral is as intended by the law, namely to get the "Right to Prioritize / Prioritize" the repayment. This right to take precedence (droit de preference) is granted with an executorial right (through public auction - parate execution / eigenmachtige verkoop) or under the hand according to the agreement of the parties to get the best price on the object of collateral.
Collateral (in the form of goods / objects) according to the Civil Code is categorized into two, namely movable and immovable property, both existing and future (Article 1131 KHUPerdata). The definition of movable or immovable is determined by its nature whether related to land or not or determined by the law itself, for example shares are reaffirmed by the Limited Liability Company Law as movable property (Article 60). Even so, goods or objects according to civil law have broad meaning. Correspondingly, in the current global era, the understanding of goods is no longer in the form of physical goods, but also digital goods (digital ware). Related to guarantee, when viewed from the point of view of its use, so long as the goods (conventional and digital goods) can be valued economically (with money), then the principle of the goods / objects should be used as collateral.
According to Prof. Soebekti, everything that can be insulted (legal objects) can be called objects. From its use, the material rights (zakelijk recht) are divided into material rights which directly provide enjoyment and material rights which become guarantees. As Article 1131 of the Civil Code earlier, the material rights that are guaranteed appear to be restricted to the types of goods (legal objects). As a guarantee that is general (by law by law) only in the form of movable and immovable property which is already present and will be in the future. This restriction is then extended by the relevant law in the event that the material rights are promised by the parties (special guarantee). According to the Fiduciary Law (Article 1), property is anything that can be owned and transferred, both tangible and intangible, registered or unregistered, movable or immovable that cannot be encumbered by mortgage or mortgage.
Related to the ownership of objects / goods, of course the problem is who is the owner / the master (the legal subject). Material rights here can be referred to as the right to maintain ownership of an object wherever the object is located. The notion of ownership here also has broad meaning, which includes the right to be able to enjoy / utilize the material. Regarding collateral, the first thing to consider is whether the object to be guaranteed is the material rights (zakelijk recht) that can be owned. The notion of 'possessed' here is the right to enjoy (utilize) goods freely.
The material rights can indeed be promised. However, not all rights related to the material promised are material rights. One of the rights arising from the agreement related to material is the Right to Rent / Right to Rent. This right is different from the term 'Right to Lease' as referred to in the Agrarian Law. Lease Rights for Buildings according to Article 44 PP Land Registration can be charged with Mortgage Rights (HT) if the lease is on a Land Ownership. That is, the Right to Lease for Buildings on Owned Land is considered a material right. However, the lease rights referred to here are in the form of buildings (in the form of houses, offices or business spaces), not on the land. In this case, the leased building cannot be used as collateral by the renter because the renter is not the owner. The lessee has no free power over the object of the lease because it is bound by the terms of the lease agreement. In addition, all risks to the object for rent are still borne by the building owner as the party renting out and the renter can sue if there is a third party deemed to interfere with the rental rights.
However, what if the leasehold is a lease that has been paid in advance for a long period of time with the right to lease it back to another party (sub-lease). Can these rights be used as collateral, for example on credit facilities or bank financing?
According to Article 1548 of the Civil Code, a lease is an agreement, whereby one party is bound to provide enjoyment of an item to another party for a certain period of time, with payment of a price that the party agrees last. People can lease various types of goods, both fixed and moving. That is, here rent also gives birth to the right to enjoy an item, a right which is in the form of
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