p–ISSN: 2723 - 6609 e-ISSN: 2745-5254

Vol. 5, No. 6 June 2024 http://jist.publikasiindonesia.id/

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3039

Transfer of Land Ownership through a Binding Agreement of

Sale and Purchase under the Hand (Comparative Study

Reviewed in the Perspective of Civil Law and Islamic Law)

Robby Awaluddin Jamil

, Emilda Kuspraningrum

, Amsari Damanik

Universitas Mulawarman Samarinda, Indonesia

Email:

[email protected]

*Correspondence

ABSTRACT

Keywords: Sale and

Purchase Binding

Agreement (PPJB),

Default, Transfer of Land

Rights.

This study aims to analyze the legal strength of the binding

sale and purchase agreement under the hand and analyze the

legal protection for the buyer if the seller commits a Default

on the binding sale and purchase agreement. This research is

a doctrinal research. In practice, in the implementation of the

Sale and Purchase Agreement, there are still many

development actors who do not make the Sale and Purchase

Agreement in front of a notary in the form of an authentic

deed, but make it in the form of a deed under hand. A Sale

and Purchase Agreement made with an authentic deed and a

deed under hand has a fundamental difference in terms of its

evidentiary strength. The Sale and Purchase Binding

Agreement in its implementation in the community cannot

always run smoothly, sometimes some factors limit the

engagement in continuing or until it becomes invalid, The

case can be known that PPJB can be asked for compensation

if it is not by the agreement of the parties in the agreement,

which in this case the seller commits a breach of

performance, while the buyer, in this case, is in good faith

by fulfilling what has been As stated in the PPJB, the

Agreement can be cancelled if it is not by the subjective

conditions or the objective requirements of the agreement as

stipulated in article 1320 of the Civil Code.

Introduction

Land has a very important meaning for every individual in society because it has a

close relationship with the existence of each human being in the environment and its

survival (Sulisrudatin, 2018). Apart from being a place to live, the land also contains an

economic value for humans, it can be used as a source of livelihood, both for farming and

to carry out business, and can also be used as collateral for loans, as well as a source of

human livelihood in the future (Ridho, 2022).

The need for a place to live (board) is a primary need for a person, in addition to

clothing and food. In addition to housing, it can also be used as an investment. Housing

and settlements, both in the form of land and buildings, are very important in supporting

Robby Awaluddin Jamil, Emilda Kuspraningrum, Amsari Damanik

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3040

the continuity and improvement of people's lives (Nikmah, Disemadi, & Purwanti, 2020).

The rapid development of the population also has an impact on the supply of land and

buildings as basic human needs due to the population density factor that occurs, although

the provision of housing needs is one of the duties and responsibilities of the state, as

mandated by the 1945 Constitution (Sakti & Budhisulistyawati, 2020).

The acquisition of land rights requires a certain process or mechanism, for example,

inheritance, grants, buying and selling, and so on (Silalahi, 2020). The transaction of

buying and selling land and/or buildings is inseparable from the existence of an

agreement/agreement (Satrianingsih & Wirasila, 2019). An agreement is a legal

relationship between two people or two parties, based on which one party has the right to

demand something from the other party, and the other party is obliged to fulfil the demand

an agreement is an event where one makes a promise to another person or both make a

promise to do something that has been agreed (Amanta, Mathon, & Azwar, 2024).

In addition, if referring to the provisions of Article 1458 of the Civil Code, it states

that "the sale and purchase is considered to have occurred between the two parties when

they have reached an agreement on the goods and price, even though the goods have not

been handed over or the price has not been paid". Based on the reading of the article

above, the sale and purchase agreement can be carried out by giving a ban first, meaning

that the sale and purchase transaction is still valid in addition to the concept of light and

cash (Sadewo, 2019).

Agreements in land purchase and sale transactions today are beginning to

experience rapid development. The sale and purchase transaction starts from an

agreement under hand (Palar & Mekka, 2023). In general, before the parties enter into a

sale and purchase agreement, they usually do a sale and purchase agreement (PPJB) first.

The meaning of PPJB itself is an agreement between the seller and the buyer before the

sale and purchase are carried out because there are elements that must be met for the sale

and purchase (Pinem, Purba, & Sembiring, 2022). In terms of buying and selling land

rights, the community is still not aware of the need for agreements made in front of the

authorized officials for it. In order to ensure legal certainty for the fulfilment of the rights

and obligations of the parties (Rosadi, 2020).

Generally, the parties who carry out transactions of buying and selling land and

buildings by agreeing without the presence of a public official, where the content of the

agreement has been agreed upon by the parties which is often called PPJB (purchase and

sale agreement) or Deed underhand (Ubaidi, Dewi, & Koeswarni, 2021).

A deed under hand is a deed that is deliberately made for proof by the parties

without assistance from a public official that has been determined by laws and

regulations. In addition, the agreement must be equipped with witnesses and other

evidence. Therefore, each deed under hand is recommended to contain at least two

witnesses who are mature and capable of strengthening the evidence (Prasetyo, 2017).

In an etymological review of Islamic law, as stated by Wahbah al-Zuhaili, the

contract includes: "The bond between two things, both tangible and meaningful, from one

aspect or two aspects."

Transfer of Land Ownership through a Binding Agreement of Sale and Purchase under the Hand

(Comparative Study Reviewed in the Perspective of Civil Law and Islamic Law)

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3041

The definition of the contract in terms of fiqh scholars can be reviewed from two

aspects, namely in general and in particular (JODHI, Suryadi, & Ayu, 2021). In general,

the contract in a broad sense is almost the same as the meaning of the contract in terms

of language according to the opinion of the scholars of Shafi'iyah, Malikiyah, and

Hanabilah, namely: "Everything that is done by a person based on his own will, such as

waqf, talaq, liberation, or something whose formation requires the desire of two people,

such as buying and selling, representation, and pawn." The meaning of akad in a special

sense put forward by fiqh scholars includes: "The bond between ijab and Kabul is based

on the provisions of sharia which have implications for the object." "The relationship of

the speech of one of the people who contract with the other in a sharia manner in terms

of what appears and has implications for the object."

The inclusion of words by the will of the provisions of Sharia in the definition above

means that any agreement made by two or more parties is not considered valid if it is not

in line with the will or provisions that have been stipulated by Sharia (Allah) and the

Prophet), for example, an agreement to carry out prohibited transactions such as riba or

other prohibited transactions (Mayasari, 2017). If the ijab and Kabul have been carried

out by the conditions and will of the shari'a', then the legal consequences of the agreement

will arise.

Arising from legal consequences/influencing means providing legal consequences,

namely the transfer of goods to the buyer and money to the seller in the sale and purchase

contract. Thus, the contract is a bond between ijab and kabul which shows the willingness

of the parties and the emergence of legal consequences for the object to be contracted.

Hasbi Ash-Shidddieqy, quoting the definition put forward by Sanhurym, stated that

what is meant by a contract is: "An alliance of ijab and Kabul that is justified by sharia

which stipulates the willingness between the two parties."

Based on the description put forward by the scholars above, three important points

must be considered in the contract. First, the contract is a meeting/relationship between

ijab and Kabul that gives rise to legal consequences. Ijab is an offer submitted by one

party, and Kabul is an answer to the agreement expressed by the other party in response

to the offer of the first party. Second, the contract is a legal action between two parties

because the contract is an ijab meeting that represents the will of one party and a Kabul

that expresses the will of the other party. Third, the purpose of the contract is to give birth

to a legal effect.

Thus, if there are elements that are not fulfilled, then the sale and purchase are

invalid. However, from the development of science and information technology along

with the development of the times, the values of the elements mentioned above can

change and must undergo changes that can result in the development of each element of

buying and selling.

The purpose of this research is directed to answer two things, First, to find out and

analyze the Legal Strength of Binding Sale and Purchase Agreements under the Hand in

the Perspective of Civil Law and Islamic Law. Second, this study aims to find out and

Robby Awaluddin Jamil, Emilda Kuspraningrum, Amsari Damanik

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3042

analyze the Legal Protection for Buyers If the Seller Defaults on the Binding Sale and

Purchase Agreement Under the Hand.

Research Methods

Research Approach

Research with a doctrinal approach is directed at a set of norms as the research

target through analysis of relations between norms, content analysis, the merger of norm

theories, and legal principles. Research like this was born as a premise that the law is a

norm formed by the state and must be avoided from non-juridical factors. In simple terms,

researchers will connect one norm to another, or connect it to a specific legal event. The

doctrinal approach with a normative character as a form of approach in legal research

specializes in efforts to solve legal problems based on written law and legal practice.

Source of Materials

The sources of materials presented in normative research are three types of legal

materials used as follows:

a. Bahan Primer

Primary legal materials are legal materials that have binding legal force. In this

study, the primary legal materials used are the 1945 Constitution, the Civil Code, the

Basic Agrarian Law, and Government Regulation Number 24 of 1997 concerning Land

Registration. Islamic law in the form of the Quran, Sunnah and Al-Hadith, as well as the

Compilation of Islamic Economic Law.

b. Secondary materials

Secondary legal materials, namely legal materials whose function complements the

primary legal materials and are non-binding. For example, the results of legal research,

legal theories, official and unofficial legal literature (scientific books) are published, legal

journals, mass media, papers and opinions of legal scholars.

c. Material Analysis

The analysis of the materials used in this study will be analyzed qualitatively to

describe the answer to the research statement:

Problem Formulation (R1)

The material obtained during the research was directed to analyze several main

things, including the concept of the process of settling a binding sale and purchase

agreement under the hands from the perspective of Civil Law and Islamic Law. In this

section, the researcher explores from the perspective of the concept of regulation related

to the legal force of the binding agreement of sale and purchase under the hand.

Problem Formulation (R2)

To answer the question from the formulation of problem 2 (two), the researcher

focuses on efforts in terms of Legal Protection for Buyers If the Seller Defaults on the

Binding Agreement of Sale and Purchase under the Hands in the Perspective of Civil Law

and Islamic Law.

Time allocation

Transfer of Land Ownership through a Binding Agreement of Sale and Purchase under the Hand

(Comparative Study Reviewed in the Perspective of Civil Law and Islamic Law)

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3043

Research is carried out for approximately 1 (one) year starting from the preparation

of research design, research design seminars, literature studies, data collection, report

preparation, seminars on research results, final exams and publications.

Results and Discussion

The Process of Implementing a Binding Sale and Purchase Agreement Under Hands

in the Perspective of Civil Law

Relationships that often occur between fellow communities result in legal

relationships such as buying and selling transactions, or business negotiations that

inevitably occur every day. An agreement between two parties or more based on the desire

to get something or rights. A person's rights can be obtained if we carry out obligations

or interactions with other parties, commonly called civil legal relationships. But not all

rights and obligations can be planned as agreed, there must be one party or individual

who does not agree, making disputes between parties until a default occurs. The purpose

of a binding sale and purchase agreement is only a temporary binding agreement, which

is the essence of the seller's agreement to bind himself to the buyer.

Before agreeing, the two parties should discuss the contents of the agreement letter

that is used so that there is no default or one of the parties does not accept the result of

the agreement. In theory, an agreement arises based on an agreement, it occurs because

there is an intention of the people concerned, but in practice what is the handle is the

statement of will or intention. Based on the statement of reciprocal intent, an agreement

occurs and from that agreement comes the rights and obligations of both parties or one of

the parties.

The Process of Implementing a Binding Sale and Purchase Agreement Under the

Hand in the Perspective of Islamic Law

Islam is a perfect religion that focuses on the issue of Aqidah and Sharia, in

explaining the relationship between the servant and his Rabb, the relationship between

the Rabb and his servant and his manners, Islam also explains various kinds of rules of

life, including muamalah and the economic system, especially buying and selling. Allah

commands people to earn a living using a business that is allowed by Islamic law after a

person has carried out his duty to worship.

Basically, in living their lives, humans have various needs, both food, clothing, and

boards. However, man is aware of his impossible ability to meet his own needs without

having relationships with others to meet his life needs. In Islam, buying and selling are

legalized by law and justified by religion, as long as they meet the requirements and the

pillars. Thus, this law has been agreed upon by ijma‟ (mujahidin scholars). It has been

affirmed in the Qur'an which explains that selling is halal, while buying and selling that

contains ambiguity is prohibited.

Al-Sunnah

The legal basis of buying and selling in the sunnah of the Prophet (peace and

blessings of Allaah be upon him) is as follows: "From Sulaiman Ibn Daud added, the

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Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3044

Prophet (peace and blessings of Allaah be upon him) said, "Those who agree are bound

by the conditions they make." (HR. Abu Daud)

Jabir Ibn Abdullah (may Allah be pleased with him) said, "The conditions between

them." Ibn Umar said, "Every condition that is contrary to the book of Allah is a false

condition, even if it is a hundred conditions." (HR. Bukhari)

Then Allah created them with the instinct of helping to meet the needs of their lives.

If Allah does not provide a just way to meet their needs, it will certainly cause harm,

narrowness, and difficulties in human life, especially for the weak. To bridge this, Allah

SWT. Sharia buying and selling fairly.

The Difference Between Binding Agreements of Sale and Purchase under Hands in

the Perspective of Civil Law and Islamic Law

There are several comparisons of binding agreements of sale and purchase

underhand from the perspective of civil law and Islamic law, namely:

Table 1

The Difference Between an Agreement according to Islamic Law and an Agreement

According to the Civil Code

Variable

Agreements in Civil Law

Akad in Islamic Law

Form of

Agreement Deed

Authentic and under the

hands of Non-Authentic

(under the hands)

Written, spoken and deed

Elements of the

Agreement

Terms of validity of the

agreement:

1. Agree with those who

bind themselves

2. The ability to make

an alliance

3. Something specific

4. A halal cause.

Elements of the Contract:

1. Rukun Akad;

a. Parties who

make the

contract

b. Statement of

the will of the

parties

c. The object of

contract

d. Purpose of

the contract

2. Conditions of the

contract

a. Conditions

for the

formation of

the contract

b. Conditions

for the

validity of

the contract

c. Conditions

for the

validity of

the contract

Transfer of Land Ownership through a Binding Agreement of Sale and Purchase under the Hand

(Comparative Study Reviewed in the Perspective of Civil Law and Islamic Law)

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3045

d. The

conditions

bind it to the

contract.

Parties and

Witnesses

It is made in front of a notary

and attended by the parties

and witnessed by 2

witnesses in agreeing, while

the agreement under hand is

only attended by the parties

and witnessed by 2

witnesses in agreeing.

In Islam, all acts of

agreements/contracts

have been believed by

religious norms to be

accountable before

ALLAH SWT. When

there is a denial between

the parties to the contract.

And it was attended by

the parties and witnessed

by 2 male witnesses or if

the witness was 1 man,

then 2 female witnesses

were added.

In the explanation of the binding agreement of sale and purchase according to the

Civil Code and Islamic law in the KHES in general, there are differences including Article

1313 of the Civil Code states that "An agreement is an act in which one or more persons

bind themselves to one or more other persons". The meaning of the explanation of the

agreement in Article 1313 of the Civil Code here can be said to be the same as the

contract. As explained in Article 20 of the KHES, "An agreement is an agreement

between two or more parties to do and or not perform certain legal acts".

Legal Protection for Buyers If the Seller Commits an Act of Default on the Sale and

Purchase Agreement under the Hands in the Perspective of Civil Law

Legal protection is a universal concept of the state of law. Legal protection consists

of two forms, namely preventive legal protection and repressive legal protection, namely:

Preventive Legal Protection which is preventive is interpreted as prevention. According

to Satjipto Rahardjo, legal protection is to protect human rights that are harmed by others

and that protection is given to the community so that they can enjoy all the rights provided

by the law.

Philipus M. Hadjon argued that legal protection is an act to protect or provide

assistance to legal subjects, using legal tools.

A buyer in good faith is a buyer who does not know and cannot be considered to

have known about defects in the process of transferring the rights to the land he has

purchased. From the results of the literature review, it can be seen that there is agreement

among the authors that the "buyer in good faith" should be interpreted as: "an honest

buyer, not knowing the defects of the goods purchased". Regarding the definition of a

buyer in good faith, R. Subekti formulated that in this regard, it is strengthened in the

provisions of the Civil Code which provides freedom for the parties to make an agreement

that determines the content of the agreement is entirely under the authority of the parties.

Like the law of treaties in general, binding agreements on sale and purchase adhere to an

open system. An open system in this case can be interpreted as everyone can make any

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Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3046

agreement, even though the laws and regulations do not regulate it, in other words, the

open system is referred to as the "Principle of freedom of contract".

Restrictive Legal Protection

Meanwhile, repressive legal protection is legal protection provided in the event of

a violation of the law. The form of legal protection includes law enforcement, which

includes the provision of sanctions, such as fines, compensation, imprisonment and other

additional punishments by resolving disputes that are taken to court.

Legal protection aims to protect human rights that are harmed by others and that

protection is given to the community so that they can enjoy all the rights guaranteed to be

protected by law. The law can be used to realize legal protection that is adaptive and

flexible, as well as predictive and anticipatory. The law is urgently needed for the weak

and not yet strong socially, economically and politically to obtain social justice.

Legal Protection for Buyers If the Seller Commits a Breach of Sale and Purchase

Agreement Under the Hands in the Perspective of Islamic Law

Islamic law contributes quite a lot as a measure to protect buyers. The purpose of

Islamic Law is to regulate the relationship between sellers and buyers solely to realize the

benefits for mankind. As we know, Islamic Law has the purpose of maintaining the

benefits of human life, both individually and socially.

As Islamic Law is used as a guideline for life, it is appropriate for Islamic Law to

take part in regulating human relationships. One of them is the relationship between the

seller and the buyer. Islamic law cannot allow the seller to act as he pleases while

executing a transaction.

It can be understood that the law of buying and selling such as buying and selling

land is allowed by Islam or halal. In Islam, of course, something that is allowed or halal

has its limitations and can become haram if it is not carried out according to the rules and

justice of each other. Buying and selling land in Islam is certainly not something that is

prohibited, as long as it has clarity of ownership, the obligations carried out are fulfilled

and does not affect society, it does not contain gharar, which is a vague buying and selling

and there is a possibility of fraud. We should not sell or buy land whose ownership is

unclear, and the land is not disputed land if the disputed land is sold will certainly harm

one of the parties, and not waqf land and the completeness of documents and legal

procedures in the country, it must be clear the status, price of the land and ownership, for

that there is a land certificate which means that the owner of the certificate has the right

and can use the land while it is still in the applicable legal rules.

Conclusion

In the process of implementing the binding agreement of sale and purchase under

the hands of this research case, the principle is subject to the general provisions of the

agreement contained in Book III of the Civil Code (KUH Perbaik) concerning

Engagement and in Islamic law is subject to the provisions of the Quran, Hadith and

Compilation of Sharia Economic Law. The implementation of the binding sale and

purchase agreement between the buyer and the seller has been by the provisions that have

Transfer of Land Ownership through a Binding Agreement of Sale and Purchase under the Hand

(Comparative Study Reviewed in the Perspective of Civil Law and Islamic Law)

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 6, June 2024 3047

been agreed upon by both parties based on the agreement made, but in its implementation,

there is a default caused by the seller not fulfilling its obligation to follow up the process

from PPJB which has been paid off to the making of a sale and purchase deed before

PPAT and the seller has also not handed over the purchased land and buildings to the

buyer. Meanwhile, the difference in the implementation of binding agreements on the sale

and purchase of land based on civil and Islamic law lies in the halal and haram of the

agreement or contract, the difference in the source of the agreement, the difference in the

age limit of proficiency, the difference in the halal substance, the difference in the rights

and obligations of the seller and the buyer.

As for the legal protection of the parties who default in the sale and purchase

agreement carried out under the hand, it can be resolved by two channels in general,

namely dispute resolution outside the court (non-litigation) and dispute resolution in court

(litigation). The difference here is the settlement of disputes in court where civil law

disputes are resolved in the District Court while Islamic civil law or sharia economic

disputes are resolved in the Religious Court.

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