Rigidly, the regulation of moratoir interests is contained in Article 1250 jo. Article 1767 paragraph (2) BW. By paying attention to the provisions of Article 1250 BW, the interest of the moratoir is the interest that is born as a result of the failure or delay in the fulfillment of an obligation from the Debtor to the Creditor.
The goal of the existence of moratoir interest is none other than as a punishment for the Debtor's negligence in fulfilling an obligation to the Creditor. It should be underlined that the application of the moratoir interest is not something that must be proven by the real loss committed by the Creditor but is taken into account when the lawsuit is entered into the civil case list at the Registrar of the District Court, in other words since the case entered the Court.
Moratoir interest exists as a form of hope for creditors and punishment for debtors. The moratoir interest itself was born because the law regulates it so that the parties cannot freely provide the calculation value of the application of moratoir interest. The basis used for the calculation of the value of the moratoir interest refers to Article 1767 paragraph (2) BW jo. State Gazette No. 22 of 1948. In this provision, it is expressly stipulated that the amount of the moratoir interest due to negligence committed by the Debtor is 6% (Six percent) per year.
The concept of applying the moratoir interest in the Civil Law family can only be applied in the case of Default. As the essence of default is related to the obligation to pay a sum of money and the delay or non-fulfillment of the obligations of the debtor to the creditor as agreed. Based on Article 1243 BW that the application of interest can be done if there is actual negligence of the debtor as well as the concept of application of the moratoir interest. The negligence of the debtor can only be calculated after a warning has been sent to the debtor in the form of a warning letter or the like which contains an order for the debtor to immediately fulfill his obligations to the creditor.
Apart from the moratoir interest, there are other types of interest in Civil Law, including:
The conventional interest is the money interest that is born from what is agreed by the parties to the agreement. As explained in Article 1249 jo. Article 1767 paragraph (2) BW basically states that in the event that the party who has an obligation fails to fulfill it, it is obliged to pay a certain amount of money. The purpose of a certain amount of money in these provisions can also be interpreted as the imposition of interest. The interest amount stipulated in the agreement is based on the agreement of the parties so that in this case the parties are given the freedom of the amount of interest even if it exceeds the amount of interest regulated in the law. Therefore, if the agreement does not mention the value of interest, then in this case the value of interest calculation must be guided by the law as explained in Article 1768 BW.
Compensatory Interest is the interest that the Debtor is obliged to pay to other parties in order to compensate the interest that should have been paid to the Creditor as a result of the Debtor not fulfilling the obligation or being unable to fulfill the obligation.
Double Interest is the interest calculated from the interest on the principal debt that is not paid in full by the Debtor.
In addition, the filing of the moratoir interest in a civil lawsuit cannot simply be accepted by the Court Judge, but the Court Judge will carefully consider whether the filing of moratoir interest can be accepted or rejected. The consideration of the Court Judge in accepting or rejecting the submission of the moratoir interest is based on and considers the evidence that shows that the related party is really late or does not fulfill its obligations. Accordingly, the Court Judge has a central role in assessing whether the application for moratoir interest to the Debtor can be accepted or rejected by taking into account the evidence submitted and the statutory provisions. Therefore, the filing of the moratoir interest in a civil lawsuit needs to pay attention to 2 (two) things, namely:
Identify and examine whether the evidence submitted is in line with the concept of moratoir interest.
Evidence of the arguments of the lawsuit and the losses suffered if not expressly regulated in the Agreement.
To overcome the problem, a good contract is needed so that it can protect and accommodate every party's needs so that it can guarantee the business of every person and company.
Author : Lailatul Komaria, S.H. (Legal Researcher)
reading resources :
KUH Perdata
Mariam Darus Badrulzaman, Kompilasi Hukum Perikatan: Dalam Rangka Menyambut Masa Purna Bakti Usia 70 Tahun (Citra Aditya Bakti 2001).