1. Introduction: The Context of Modern Litigation
In the modern civil justice landscape, the volume of default cases continues to increase, but a significant number of lawsuits fail at the initial stage (exceptions). The main problem is often not the substance of the loss, but rather the formal defects in the preliminary procedure. A demand letter functions as a litigation gateway, transforming a factual dispute into a juridical dispute.
A. Factual vs. Juridical Distinction (Default vs. Notice of Default)
It is important to distinguish between late (fact) and negligent (law). The following table clarifies the difference:
| Aspect | Default (Factual) | Negligence / Verzuim (Juridical) |
|---|---|---|
| Nature | State of Facts (Feitelijk) | Legal Status (Rechtstoestand) |
| Trigger | Late or non-performance | Existence of a Summons (Reprimand) or Fataal Termijn Clause |
| Legal Basis | Article 1234 of the Civil Code (Obligation of Performance) | Article 1238 of the Civil Code (Declaration of Default) |
| Legal Consequences | Does not automatically give rise to the right to compensation | Becomes an absolute condition for claims for Compensation (Article 1243 of the Civil Code) and Transfer of Risk (Article 1237 of the Civil Code) |
B. Affirmation of Theoretical Basis (Constitutive Nature)
From a dogmatic legal perspective, a summons is Constitutive (creates a legal situation). Without a summons (except in exceptional circumstances), the fact of delay does not give rise to the right to claim compensation. A formally flawed summons can cause a lawsuit to fail with a Niet Ontvankelijke Verklaard (NO) decision.
2. Basic Concepts, Doctrines, and Dualistic Position
A. Foundation of Academic Doctrine
- E. Utrecht: Defines a summons as an explicit wilsverklaring (declaration of intent) to demand performance.
- Subekti: Affirms that a "reprimand" is an absolute condition for establishing the debtor's negligence.
- Pitlo: Emphasizes the function of ingebrekestelling as a demarcation line for when the risk transfers from the creditor to the debtor.
B. Classification of Performance (Article 1234 of the Civil Code)
- Practical Explanation: The type of performance determines the method of summons.
- Legal Basis: Article 1234 of the Civil Code and Article 1242 of the Civil Code.
- Implication: For the obligation to "not do something" (Article 1242 of the Civil Code), a summons is not required because the violation directly gives rise to compensation.
C. Dualistic Position of Summons
- Unilateral Legal Act (Eenzijdige Rechtshandeling): Is constitutive in creating a state of default (verzuim) (Article 1238 of the Civil Code).
- Documentary Evidence (Bewijsmiddel): Serves to prove before a judge that a warning has been issued (Article 1866 of the Civil Code in conjunction with Article 164 of the HIR).
3. Hierarchy of Legal Basis and Contractual Variations
The understanding of a summons must be placed within the correct hierarchy of norms to ensure a robust legal argument.
A. Table of Summons Norm Hierarchy
| Level of Norm | Legal Instrument | Function & Position |
|---|---|---|
| Primary Norm | Civil Code (BW) | Constitutive Basis (Articles 1238, 1243 of the Civil Code). Primary reference if the contract is silent. |
| Lex Specialis | Contract/Agreement | Overrides the general provisions of the Civil Code (Article 1338 of the Civil Code). If the contract stipulates "Automatic Default", a summons becomes optional. |
| Practical Confirmation | Supreme Court Jurisprudence | Guidelines for the application of law by judges (e.g., standard of reasonable time). |
B. Summons Based on Contract Clauses
- Practical Explanation: Check the contract first. Is there a waiver of notice clause?
- Legal Basis: Article 1338 paragraph (1) of the Civil Code (Freedom of Contract).
- Implication: If the contract stipulates "automatic default upon lapse of time", a summons is optional (reinforcement of good faith). If not, revert to Article 1238 of the Civil Code (mandatory).
4. Obligations and Exceptions (Mandatory vs. Optional)
Understanding when a notice of default is absolutely necessary is key to litigation efficiency.
| Condition | Notice of Default Status | Legal Basis | Practical Explanation |
|---|---|---|---|
| No definite time limit | MANDATORY | Article 1238 of the Civil Code | The debtor must be reprimanded to know when the performance must be fulfilled (due date). |
| There is a Fataal Termijn (Fixed Deadline) | NOT MANDATORY (Optional) | Doctrine & Jurisprudence | Performance becomes futile if it is late (e.g., wedding catering). |
| Debtor Refuses (Repudiation) | NOT MANDATORY | Doctrine of Bad Faith | The debtor's explicit refusal is considered an automatic default. |
| Obligation of "Not to Do" | NOT MANDATORY | Article 1242 of the Civil Code | Violation of a prohibition (e.g., leaking secrets) directly gives rise to damages. |
| Mora Creditoris | NOT RELEVANT | Article 1236 of the Civil Code | If the creditor refuses payment, the debtor is not in default. |
5. Legal and Effective Conditions: Measurable Parameters
A. Indicators of Validity
Based on judicial practice, an effective notice of default must be:
- Clarity: The object of the claim is detailed (Principal + Interest).
- Certainty: Deadline date/time (Article 1338 paragraph 3 of the Civil Code - Reasonableness).
- Imperative: Using command language.
B. Legal Risks of Formally Defective Demand Letters
What are the consequences if the notice of default is drawn up carelessly?
- No Deadline: The notice of default is considered an ordinary appeal → No Verzuim arises (Article 1238 of the Civil Code).
- Wrong Address/Subject: Error in Persona → The notice of default is invalid → Claim is Not Accepted.
- Vague Claim: Obscuur Libel → The judge cannot grant the claim for damages.
6. Letter Drafting Techniques: Anatomical Block Standards
A. Mandatory Structure
- HEADING: Official Letterhead, Reference Number, Subject (Explicit: NOTICE OF DEFAULT).
- IDENTITY & LEGAL BASIS: Reference to the Agreement/Invoice.
- FACTS OF DEFAULT: Description of the failure to fulfill.
- COMMAND (PETITUM): Using imperative phrases.
- BILLING DETAILS & DUE DATE: Measured table.
- CONSEQUENCES & RESERVATION OF RIGHTS: Default statement and transfer of risk.
B. Examples of Imperative Phrases (According to Type of Performance)
To fulfill the element of "Order Letter" (Article 1238 of the Civil Code), use the following variations:
- For Monetary Debt: "We ORDER you to settle all payment obligations of Rp [...] no later than..."
- For Service/Construction Work: "We INSTRUCT you to immediately resume work in the field and catch up on the negative deviation progress..."
- For Asset Eviction: "We REPRIMAND and ORDER you to vacate and hand over the physical object of the dispute in an empty state..."
7. Number and Stages of Demand Letters
Practical vs. Normative Perspective
It is important to understand that the Civil Code does not regulate the number of summons.
- Normative: 1 Summons is sufficient if it is firm (Article 1238 of the Civil Code).
- Litigation Practice: 2-3 Summons are recommended for complex cases (land/construction) to prove maximum good faith before a judge.
8. Delivery and Proof Methods (Litigation-Proof)
The delivery method determines the strength of evidence in court. Here is a comparison:
| Delivery Method | Validity Status | Evidentiary Strength | Main Risks |
|---|---|---|---|
| Registered Mail | Valid (Law 38/2009) | High (Legal Presumption of Receipt) | Delivery takes longer. |
| Private Courier | Valid (Fact) | Medium (Needs supporting evidence) | Private courier receipts are sometimes only considered proof of delivery, not official proof of receipt. |
| Official Email | Valid (ITE Law) | Medium-High (If there are server logs) | Prone to being marked as spam or denied as "unread". |
| Valid (ITE Law) | Low-Medium | Susceptible to screenshot manipulation, read receipts turned off. |
Recommendation: Use a combination of Registered Mail (Mandatory) + Email/WA (Supporting).
9. Application Case Studies
To strengthen understanding, here is an application scenario:
- Case A: Overdue Cash Debt
- Fact: Debt of IDR 100 million, promise to pay on January 1st.
- Action: Send a Reprimand 1 time (3-day limit). If not paid → Immediately file a Breach of Contract lawsuit. One Reprimand is sufficient because the achievement is simple.
- Case B: Stalled Project (Construction)
- Fact: Contractor is slow, progress deviation -20%.
- Action: Demand I (7-day rectification notice), Demand II (Termination warning), Demand III (Contract termination). A gradual approach is necessary due to the mobilization of equipment/workers.
- Case C: Repudiation
- Fact: The Debtor replied via WhatsApp: "I will not pay a single cent!"
- Action: No further demands are necessary. Save the rejection evidence as proof of automatic Verzuim. Immediately register a lawsuit.
10. Letter Concept Template (Professional Standard)
This template includes a "No Negotiation" clause and risk mitigation.
LETTERHEAD OF LAW OFFICE / CREDITOR
Number: [Ref. No.]
Attachment: 1 (One) File [SKK & Calculation Details]
Subject: DEMAND / STATEMENT OF DEFAULT (INGEBREKESTELLING)
To:
Mr. [Debtor's Name]
at [Address as per Contract]
Dear Sir/Madam,
Acting for and on behalf of our client [Client's Name], based on the Special Power of Attorney dated [Date of Power of Attorney] (Attached), we hereby convey the following:
I. LEGAL BASIS OF RELATIONSHIP
- That you are bound by Agreement No. [...] dated [...] ("Agreement").
- Referring to Article [..] of the Agreement regarding Legal Domicile, this letter is sent to the agreed address.
II. FACTS OF DEFAULT
3. That the payment obligation has fallen due on [...]
4. That until this letter is published, you have not fulfilled these obligations.
III. ORDERS AND DETAILS OF CLAIMS
Based on Article 1238 of the Civil Code, we ORDER you to pay:
| Component | Value (Rp) | Basis of Calculation |
| Principal Debt | Rp 100,000,000 | Invoice No. ... |
| Accrued Interest | Rp 5,000,000 | 6% p.a (Article 1250 of the Civil Code) |
| Late Payment Fee | Rp 2,000,000 | Article ... of the Agreement |
| TOTAL | Rp 107,000,000 |
The mandatory payment must be received effectively no later than 3 (three) calendar days from the date of this letter (3:00 PM Western Indonesian Time), to the following account:
Bank [Bank Name] No. [Account Number] a.n. [Account Holder Name]
Closing Clause of Negotiation (Optional): This letter constitutes a final warning. All prior mediation processes or verbal communications are deemed to have concluded without agreement. All of your obligations must be fulfilled without delay.
IV. CONSEQUENCES & RESERVATION OF RIGHTS
- The lapse of time results in you being deemed in default (in verzuim).
- The risk transfers to you (Article 1237 paragraph 2 of the Civil Code).
- We reserve the right to pursue a Civil Lawsuit.
- Any asset manipulation may carry criminal risks as long as it fulfills the elements of Article 372/378 of the Criminal Code.
Sincerely,
Legal Counsel
[Signature & Stamp]
(Advocate Name, S.H.)
11. Practical Checklist (Exception Anticipation)
Use this checklist to mitigate the risk of counterclaims (Exceptions) from the opposing party:
A. Formal Compliance:
- [ ] Basis of legal relationship (contract) is valid.
- [ ] Performance is due & Accurate details.
- [ ] Anticipate Premature Exceptions: Ensure the demand deadline has passed before registering a lawsuit.
- [ ] Anticipate Obscuur Libel Exception: Ensure the details of Principal, Interest, and Penalties are clearly separated.
- [ ] Anticipate Error in Persona Exception: Ensure the debtor's name matches their ID card/Deed.
B. Delivery Stage:
- [ ] Send to the contract domicile address (Mandatory).
- [ ] Archive proof of delivery (Postal Receipt/Digital Log).
12. Juridical Consistency Test (Final Self-Audit)
| Test Parameter | Status | Risk Analysis |
|---|---|---|
| Norm Consistency | ✅ VALID | In accordance with the Civil Code, HIR, ITE Law, and Postal Law. The hierarchy of norms is maintained. |
| Contract Integration | ✅ SAFE | Examining penalty and domicile clauses in the contract before drafting a summons, avoiding petitum inconsistencies. |
| Civil Risk | ✅ SAFE | The deadline is based on the principle of reasonableness, minimizing the risk of being considered an unlawful act. |
| Criminal Risk | ✅ SAFE | The criminal warning is informative and conditional, avoiding accusations of extortion. |
| Integrity of Evidence | ✅ STRONG | The use of postal tracking as a legal presumption strengthens the evidentiary position. |
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