Humans are social creatures who live side by side and interact with each other. The relationship that occurs between humans gives rise to a legal relationship. Legal relationship is the relationship between two or more legal subjects regarding the rights and obligations on the one hand versus the rights and obligations on the other side [1]. Legal relations can be realized in civil relations, one of which is in an engagement. Based on Article 1233 of the Civil Code (KUHPerdata), an engagement arises because of an agreement on one thing. According to Subekti, an agreement is an event where one person promises to another person, or where the 2 (two) people promise each other to do something, then a relationship between the two people is called an engagement [2].

An agreement is an agreement by which two or more people bind themselves to carry out something in the field of property. The agreements that often occur in the community include debt agreements and sale and purchase agreements. In addition to the agreement, it is also known that there is a Sale and Purchase Binding Agreement. The binding sale and purchase agreement itself is an agreement made on the basis of the agreement of the parties in order to regulate the interests of the parties, namely the seller and the buyer, which arise because of the requirements or elements that have not been fulfilled in the process of buying and selling land rights.

The actual sale and purchase binding agreement has not been regulated in legislation, which in practice the sale and purchase binding agreement can be made by notarial deed or under the hand. Notaries in making the deed of the Sale and Purchase Binding Agreement rely on the provisions of Article 15 paragraph 2 letter f of Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning the Position of a Notary which is often called UUJN which gives authority to a notary to make deed related to land.

The development in the making of the Sale and Purchase Binding Agreement is not only due to the fact that the elements of sale and purchase have not been fulfilled, including land certificates that do not yet exist because they are still in process, or there has been no settlement of prices or taxes imposed on the sale and purchase of the land has not been paid by either the seller or the buyer. In the Sale and Purchase Binding Agreement the parties who will make the sale and purchase are bound and already have the rights and obligations to fulfill the agreement as agreed in the agreement [3].

The Sale and Purchase Binding Agreement was made by the parties because of the debt-receivable agreement used to bind the collateral for land rights belonging to the debtor. In the community it does not escape the name of the debt agreement, both in small and large amounts. The loan agreement is included in the loan-borrowing agreement, as stipulated in Article 1754 of the Civil Code (KUHPerdata) which states that the loan agreement is "an agreement in which one party gives to the other a certain number of goods which are exhausted due to use, on the condition that the latter party will return the same number of goods of the same kind and condition.” 

Debt guarantee is the giving of confidence to the creditor on the payment of debts that have been given to the debtor, where this happens due to law or arising from an agreement that is an assessor to the principal agreement in the form of an agreement that issues debts [4]. The function of land as security for a debt is regulated in Law Number 4 of 1996 on Liability Rights over Land and Objects Related to Land, which is often called the Liability Rights Act. The right of Dependent itself is the right of security imposed on the right to land as referred to in Law No. 5 of 1960 on the Basic Regulations of Agrarian Principles, with or without the following other objects which are a union with the land, for the repayment of certain debts to other creditors.

However, there is a deviation from the legal process where in the relationship of receivables, creditors and debtors bind the guarantee of rights to land owned by the debtor with a Sale and Purchase Agreement. The object in the Sale and Purchase Agreement is the right to land owned by the debtor where the debtor as the seller and the creditor as the buyer who has set the price of the land to be purchased by the creditor. The Sale and Purchase Binding Agreement which contains the debtor and the creditor themselves is made in the background because of the receivables agreement and not because of the sale and purchase of land. The binding of debt guarantee in the form of land rights is done by a Sale and Purchase Binding Agreement, its existence is not regulated in the legislation, given that the institution of the guarantee of land rights, namely the Right of Dependents.

Guarantees imposed on land rights under Article 9 of the Dependent Rights Law, the creditor who should act as the Dependent Rights holder based on the provisions of Article 20 paragraph (1) letter a of the Dependent Rights Law as referred to in Article 6 ”. Article 6 states "if the debtor breaches the promise, the first holder of the Liability Rights has the right to sell the object of the Liability Rights on his own authority through a public auction and take payment of his receivables from the seller's proceeds".

The binding of security for land rights with this Sale and Purchase Binding Agreement can pose a problem when the creditor does not act as the guarantor who has the authority to sell the object of the Liability Rights but acts as the buyer of the security. The creditor has the power to collect the debt to the debtor, with that power can buy security rights to the land owned by the debtor at a price set by the creditor himself. The purchase of guaranteed land rights that is not in accordance with the sale price can cause disputes and losses on the part of the debtor.

An agreement must be able to provide a fair exchange for the parties and not harm each other. The principle of proportionality in the contract is defined as the principle that underlies the exchange of rights and obligations of the parties according to their portion or part. The principle of proportionality does not question the balance (equality) of results, but rather emphasizes the proportion of the division of rights and obligations between the parties [5]. The binding of the guarantee of land rights with the Binding of Sale Agreement is seen based on the position of the parties in the agreement can cause losses for the parties.

Based on the above description, the author is interested in conducting research in the title: The Position of the Sale and Purchase Agreement Used to Bind the Security of Land Rights in Debt Receivables Reviewed on the Basis of Proportionality. Based on the title, the author examines and analyzes a formula that is: How is the position of the Sale and Purchase Agreement used to bind the guarantee of land rights in receivables reviewed based on the principle of proportionality?

The type of research used by the author is doctrinal law research or also known as normative legal research. According to Peter Mahmud Marzuki, back to the research function. The normative legal research is trying to find the truth of coherence, that is, whether the rule of law appropriate legal norms and whether the norms that form the command or prohibition in accordance with the legal principles, as well as whether the act(act)a person in accordance with legal norms or principles of law [6]. This research was conducted by examining library materials which are primary legal materials. This normative research can be said to be a library research or document study because this research is mostly done on secondary data in the library [7]. This study uses secondary data in the form of legal materials:

• Primary Legal Materials are authoritative legal materials, which mean that they have authority. Primary legal materials consist of legislation, official records or minutes in the making of legislation and judges' decisions [6] In this study, the primary legal materials included:

• Code of Civil law

• Law No. 5 of 1960 concerning Basic Agrarian Regulations

• Law No. 4/1996 concerning Mortgage Rights to Land and Objects related to Land

• Government Regulation Number 37 of 1998 concerning Regulations on the Position of Land Deed Making Officials

• Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning the Position of Notary Public

• Secondary materials are in the form of all publications on law, including textbooks, legal dictionaries, legal journals and comments on court decisions. The researcher used secondary legal materials in the form of legal books, scientific journals and papers related to the Sale and Purchase Agreement, accounts payable agreement, guarantees and other secondary legal materials related to the research

This study applied qualitative analysis, which was based on the sound of the provisions of the law. Then it would be linked to the theory obtained from the literature study so that the answers to the problems studied and analyzed were obtained using deductive thinking methods, namely thinking patterns originated from submission of the major premise (general statement) then minor premise (special in nature) was submitted. According to Philipus M. Hadjon (as cited in Peter Mahmud Marzuki), the major premise is the rule of law in logic for legal reasoning. In contrast, the minor premise is legal facts. From these two things, a conclusion can be drawn.

Debt agreements often occur in the community that can be carried out by anyone who has the ability to pay debts, either between banks and individuals or between individuals. In accounts payable, there are two parties, namely the party who gives the loan and the party who receives the loan. The term used in the loan agreement for the party providing the loan is the party who is owed or creditor, while the party receiving the loan is called the debtor [7]. In general, lending and borrowing activities that occur between creditors and debtors are often required to have debt guarantees by the lender to the borrower. Bearing in mind that in debt, it cannot be separated from the collateral used to guarantee the payment of a debt.

This guarantee/collateral usually has functions, namely [8]:

• As a debt/credit payer, if the debtor cannot pay off his debt/redit by selling/auctioning collateral/guarantees

• As a result of the first function, it is one factor determining the amount of credit extended (except in special cases, such as program credits, etc.)

• As a motivator for debtors

The guarantee can be divided into 2 types, namely the material guarantee (material) and the immaterial guarantee (individual) [9]. Material guarantees have the characteristics of having a direct relationship to the object, can be maintained to anyone, always follow the object (droit de suite), the older has a higher position and can be transferred to others [10]. Material security can be classified into 4 (four) types, namely:

• Mortgage (pand) which is regulated in Chapter 20 of Book II of the Book of Civil Law

• Mortgages regulated in Chapter 21 of Book II of the Code of Civil Law, concerning the guarantee of ships and aircraft

• Liability Rights, as regulated in Law Number 4 of 1996 on Liability Rights on Land and Land-Related Objects

• Fidusia Guarantee, as regulated in Law Number 42 of 1999 on Fidusia Guarantee

On the bond debt in the form of land rights can be done with the guarantee of mortgage as referred to in Article 1 paragraph 1 that is:

"Assignment of Rights is money charged on land rights as stipulated in Law No. 5 of 1960 on Basic Regulation -Agrarian tree, following or not following other things which are a union with the land, for the repayment of certain debts, which give a preferred position to certain creditors over other creditors”.

The emergence of Liability Rights if it has previously been promised in the agreement of receivables which is the basis of the granting of debts guaranteed by the Liability Rights that the Liability Rights will be given to the creditor. This is in accordance with Article 10 paragraph 1 of the Law of Dependents "the granting of Dependents is preceded by a promise to provide Dependents as security for the repayment of certain debts, which are set out in and are an integral part of the relevant debts agreement or agreement others that cause the debt ".

Meanwhile, the Giver of Dependent Rights itself will be done by making a separate agreement by the Land Deed Making Official in the form of Dependent Grant Deed as explained in Article 10 paragraph 2 of the Dependent Rights Law states that in accordance with applicable laws and regulations ”. It is known that there is a need for a receivables agreement that precedes the Deed of Granting Liability Rights, given the nature of Liability Rights as an accessoir agreement of the parent agreement in the form of a receivables agreement [11].

But in practice in the community it is still found that the binding of debt security in the form of land rights is done by a Sale and Purchase Binding Agreement with a Notary deed, not by making a Deed of Liability by the Land Deed Making Official. The guarantee of land rights with the Sale and Purchase Agreement still occurs in the community because it is more effective and the procedure is easier if the object of guarantee in the form of land rights will be sold when the debtor defaults or breaches promise.

According to Herlien Budiono, the Sale and Purchase Binding Agreement is an assistance agreement that serves as a preliminary agreement in its free form, so that the Sale and Purchase Binding Agreement can be categorized into preliminary agreements made before the implementation of the main agreement or principal agreement [12]. Before the sale and purchase of land in front of the authorized Land Deed Making Office, the parties make a deed binding the sale and purchase of land in front of a Notary. The binding is intended as a preliminary agreement of the main intention of the parties to effect the transfer of rights to the land.

Agreement law in Indonesia embraces the principle of freedom in terms of making agreements which later became known as the principle of freedom of contract. That everyone has the freedom to bind himself to others. One thing to note is that the principle is to assume a balanced bargaining position among the contractors. Freedom to contract is based on the position of both parties who are equally strong, have the same (bargaining positionbargaining position) [13].

The legal system of agreements is an open system which means that everyone is free to enter into agreements both that have been regulated and those that have not been regulated in law. The agreement made must be in accordance with the applicable laws and regulations and meet the provisions in the Civil Code Article 1320 regarding the legal requirements of the agreement, namely:

• To agree with those who bind themselves

• The ability to make an engagement

• A certain thing

• A lawful cause

The agreement that binds themselves means that the parties who agree have agreed or agree with their will or mutually agree with each other's choice, which is born by the parties with no coercion, error and fraud. It is an agreement that can be expressed explicitly or tacitly [14]. The second requirement is the ability of the parties to make an engagement mutually. In connection with this, Article 1329 of the Civil Code states that every person can make engagements if he/she is not declared incompetent by law. People who are not capable of making an engagement are mentioned in Article 1330 of the Civil Code; they are people who are not yet mature, those who are placed under interdiction. The third requirement is that the agreement must be about certain things. In this case, it is regarding the object of the agreement or the subject of the agreement. Based on Article 1333 of the Civil Code, an agreement must have the principle of a slightly determined item. Besides, it is not an obstacle that the quantity of goods is not determined/certain, provided that the amount can then be determined or calculated. The fourth requirement is regarding legalized causa. The meaning of causa is the content and purpose of the agreement itself. The meaning of causa, which is not legalized, is contrary to law, decency, or public order [15]. The first two requirements are called subjective conditions. They concern the people or subjects who agree, while the last two requirements are called objective conditions. It is because they relate to the agreement itself or the object of the legal act committed [2].

If the objective requirements are not met, then the agreement is null and void. It means that an agreement is never born from the beginning and there is never an engagement. The purpose of the parties who agree to give birth to a legal engagement is to fail. Thus, there is no basis for suing each other in front of the judge. If the subjective requirements are not met, then the agreement is not null and void, but one of the parties has the right to request that the agreement be canceled. The party that can request cancellation is the incompetent party or the party who agreed not freely. Thus, the agreement that has been made is also binding, as long as it is not canceled (by the judge) at the request of the party entitled to request the cancellation. Therefore, such an agreement's fate is uncertain and depends on a party's willingness to comply with it. He/she is always threatened with cancellation.

An agreement made must be in accordance with the applicable laws and regulations and meet the provisions in the Civil Code Article 1320 on the legal requirements of the agreement, namely the agreement of those who bind themselves, the ability to make an alliance, a certain matter and a lawful reason. This is in accordance with the principle of freedom of contract that everyone has the right to enter into agreements freely as long as they do not conflict with the law and against the law.

Considering the guarantee of land rights based on the provisions of Article 1 of Law Number 4 of 1996 on Liability Rights to Land and Objects Related to Land or often referred to as the Liability Rights Law, states:

“Liability Rights to land and objects -things related to land, hereinafter referred to as Liability Rights, are security rights imposed on land rights as referred to in Law No. 5 of 1960 on the Basic Regulations of Agrarian Principles, with or without the following other objects which are a union with the land, for the repayment of certain debts, which gives a preferred position to certain creditors over other creditors”.

According to the author, although the position of the Sale and Purchase Agreement itself in the agreement law is an agreement born due to the principle of freedom of contract in accordance with the provisions of Article 1338 of the Civil Code, but it is stated that the agreement made does not violate law, public order and morality. Sale and Purchase Binding Agreement made by the debtor and the creditor themselves to bind the debt guarantee in the form of rights to land belonging to the debtor not because the land will be sold and bought, seen based on the legal requirements of the agreement in Article 1320 of the Civil Code does not meet the objective requirements. forbidden. Based on the provisions in Article 1335 of the Civil Code states that: "an agreement without cause or that has been made for a false or prohibited reason, has no force (law). Thus, the Sale and Purchase Binding Agreement used to bind the guarantee of receivables in the form of land rights is not in accordance with the provisions of Article 1 number 1 of the Dependent Rights Law which states that the guarantee imposed on land rights is done with Dependent Rights.

In addition, in the implementation of the agreement must also pay attention to and apply the principles in the law of the agreement. The legal principle is the basis for covenant law that provides an overview of the background of the way of thinking that forms the basis of covenant law. The agreement is made based on the provisions of the principles of the agreement, it is expected that the purpose of making the agreement, namely the achievement of justice, order and legal certainty can be realized. With the agreement, it is expected that each party will keep the promise and implement it. The principles or foundations in the law serve as a protection to society.

It should be noted that there is a difference between legal rules and legal principles. Often a legal basis is outside the law. But it is not uncommon for the principle of law to be concreted (realized) as a rule of law. An illustration of that is the basic legal arrangements that require a person to pay attention to propriety and speed (Article 1339 of the Civil Code). The legal basis is also manifested in the provisions of Article 1338 of the Civil Code which states that all agreements made legally apply as law to those who make them [16].

The principle of proportionality is the embodiment of the doctrine of contractual justice that corrects the dominance of the principle of freedom of contract which in some cases actually causes an injustice. The realization of contractual justice is determined through two approaches, namely the first, procedural approach, this approach focuses on the issue of freedom of will in a contract. The second approach, which is a substantive approach that emphasizes the content or substance as well as the execution of the contract. In the substantive approach it is necessary to note the existence of different interests.

Based on the morality of these considerations, the principle of proportionality is meaningful as a principle that underlies or underlies the exchange of rights and obligations of the parties in proportion or part. The principle of proportionality assumes the existence of a mechanism of proportional division of rights and obligations that is realized in the entire process of contractual relations, contract formation and contract execution. The proportional basis is highly oriented to the contest of relationships and the interests of the parties (maintaining the continuity of the relationship).

The principle of proportionality in the contract is defined as the principle that underlies the exchange of rights and obligations of the parties according to their portion or part. The principle of proportionality does not question the balance (equality) of results, but rather emphasizes the proportion of the division of rights and obligations among them. Viewed based on the criteria for determining the basis of proportionality in the contract, as follows [17]:

• A contract with a proportional basis substantially is a contract that gives recognition to equal rights, opportunities and opportunities to the contractors to determine a fair exchange for them. Equality does not mean equality of results but in the position of the parties who rely on equity of position and rights (equitability) (principle of equality of rights/ equality of rights)

• Based on the equality and equality of rights then a contract that has a proportional basis substantial is a contract that is based on the freedom of the contractors to determine the substance of what is fair and what is unfair to them (principle of freedom)

• A contract that has the substance of proportionality is a contract that is able to guarantee the implementation of rights while at the same time distributing obligations proportionally to the parties. That justice does not always mean that everyone should always get something in the same amount, in this context it is possible to have a different end result

A guarantee in debts that is imposed on land rights is called Mortgage, where the debtor acts as the provider of the Mortgage and the creditor acts as the holder of the Mortgage as stated in Article 9 of the Mortgage Law. Law that is domiciled as a debtor".

If the debtor defaults based on the provisions of Article 20 paragraph 1 letter a of the Mortgage Law "The right of the first Mortgage holder to sell the object of the Mortgage as referred to in Article 6". Article 6 states that "if the debtor is in breach of contract, the holder of the first Mortgage has the right to sell the object of the Mortgage on his own power through a public auction and take repayment of his receivables from the proceeds of the sale".

The debtor can be said to be in default based on the provisions in Article 1238 of the Civil Code, namely: "the debtor is negligent, if he by a warrant or with a similar deed has been declared negligent, or for the sake of his own engagement, if this stipulates that the debtor must be deemed negligent with the lapse of the allotted time”. Default (negligence or negligence) of a debtor can be of four kinds:

• Not doing what he is promised to do

• Carry out what he promised, but not as promised

• Did what he promised but was too late

• Doing something that according to the agreement is not allowed to do

In terms of the Sale and Purchase Binding Agreements that have been made by the parties in binding collateral for debts and receivables in the form of land rights, generally subject to the general provisions of the agreement contained in Book III of the Civil Code concerning the engagement. Article 1313 of the Civil Code provides the formulation of the agreement as follows: an agreement is an act by which one or more persons bind themselves to one or more other persons.

It can be said that the Sale and Purchase Binding Agreement made by the debtor and creditor is a form of contractual freedom that everyone has the freedom to bind himself to others. In the freedom of contract there must be a balanced bargaining position among the contract makers. When viewed with the principle of proportionality, the dominance of one party in the freedom of contract in the agreement which causes an injustice with the existence of an unequal position between the debtor and creditor. The unbalanced position between creditors and creditors can be seen from the power possessed by creditors to collect debts from debtors and debtors in a weak position who have an obligation to repay debts to creditors. With this imbalance in position, creditors who have the power to collect debts can claim rights to land belonging to the debtor.

Considering the initial relationship of the parties, namely accounts payable, the making of the Sale and Purchase Binding Agreement creates an imbalance in the position between the parties. The creditor in the debt agreement with the guarantee of land rights should act as the holder of the Mortgage Rights as stated in Article 9 of Law Number 4 of 1996 concerning Mortgage Rights, but in this case the creditor acts as the buyer of the guarantee which creates an injustice for the debtor by buying the land owned by the debtor at a price below the value of the land itself. This injustice causes losses to the debtor because the creditor who has the power to collect debts from the debtor can buy collateral for land rights belonging to the debtor at a price below the selling value of the land itself which can benefit the creditor.

Based on the provisions of Article 20 paragraph 1 letter a of the Mortgage Law, "The right of the first Mortgage holder to sell the object of the Mortgage as referred to in Article 6". Article 6 states that "if the debtor is in breach of contract, the holder of the first Mortgage has the right to sell the object of the Mortgage on his own power through a public auction and take repayment of his receivables from the proceeds of the sale". However, in binding the guarantee of land rights belonging to the debtor, the creditor as the buyer of the guarantee that is not in accordance with these provisions should sell the guarantee of land rights to another party or through an auction.

Based on the criteria in determining the principle of proportionality in a deed, the Sale and Purchase Binding Agreement made by the debtor and creditor to bind the guarantee for land rights owned by the debtor does not provide equal opportunities and opportunities for the parties to determine a fair exchange for them. The binding sale and purchase agreement of land rights belonging to the debtor contains the position of the creditor as the buyer and the debtor as the seller. The creditor as the buyer buys the land according to the price he has determined. The debtor as a seller is in a weak position because he has debts to creditors and cannot claim the actual land price because of the creditor's power to collect debts from the debtor. Thus there is no freedom for the parties to determine the substance in this case determining the fair selling value of the land for the parties, namely creditors and debtors. So that the implementation of the debtor's obligation to return the debt to the creditor with the right to his land there is no legal certainty and by buying the right to the debtor's land at a price lower than the selling value of the land itself causes losses to the debtor.

The binding of the object of debt guarantee in the form of land rights with the Sale and Purchase Binding Agreement by the debtor and creditor has violated the provisions in Article 1 number 1 of Law Number 4 of 1996 concerning Mortgage Rights on Land and Objects related to Land (Law No. 4/1996). Mortgage), which states that the guarantee imposed on land rights is carried out with Mortgage Rights. The Sale and Purchase Binding Agreement to bind the debt guarantee in the form of land rights based on the provisions of the legal terms of the agreement Article 1320 of the Civil Code, does not meet the objective requirements, namely because of a prohibited cause. This is because the agreement has been made for a false or forbidden cause, namely the Sale and Purchase Binding Agreement made by the debtor and creditor based on a debt agreement not because it will sell and buy land. In addition, the implementation of the agreement is also not in accordance with the principle of proportionality. The Sale and Purchase Binding Agreement made by the debtor and creditor does not provide equal opportunities and opportunities for the parties to determine a fair exchange for them. The creditor as the buyer buys the land according to the price he has determined and the debtor as the seller is in a weak position because he has debts to the creditor cannot claim the actual price of the land because of the creditor's power to collect debts from the debtor. Thus there is no freedom for the parties to determine the substance in this case determining the fair selling value of land for the parties which can cause losses to the debtor.

The suggestions from this research can be seen as follows:

• For creditors and debtors, it is better to bind the object of collateral for debts in the form of land rights so that they can be charged with guarantees of Mortgage as stated in Article 1 point 1 of Law Number 4 of 1996 concerning Mortgage on Land and Objects related to Land. To be able to provide protection for creditors if the debtor defaults and provide legal certainty to the debtor

• For a notary, the parties in entering into a debt agreement that will bind the collateral for their debts in the form of land rights with a Sale and Purchase Binding Agreement to be able to provide an explanation and understanding of the position of the Sale and Purchase Binding Agreement itself, so that there are no acts that violate the provisions of the legislation. -invitation in binding the object of collateral for debts and providing legal certainty in binding collateral for debts in the form of land rights

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