Understanding Demand Letters and Their Relationship to Default

By Heksa Archie Putra Nugraha

15 Feb 2024 07:00 WIB 15 February 2024 07:00 WIB 7 minutes reading time: 7 minutes 62 read

This article discusses a brief explanation of demand letters and their use in practice.

Understanding Demand Letters and Their Relationship to Default

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Table of Contents

Definition of Somasi
Relationship between Warning and Default
Framework of Demand Letters in Practice
Reference Source

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Legal Literacy - This article discusses somasi, a written warning to a debtor who is in default. It explains the meaning of somasi, its form, its relationship to default, and its practice in Indonesia.

Definition of Somasi

Normatively, the Burgerlijk Wetbook or Civil Code (hereinafter referred to as “BW”) does not recognize the term somasi. Article 1238 of the BW, which is often referred to as the legal basis for somasi, actually uses the term ingebreke stelling. According to Isabella Sharon Lapod[1], sommatie is a written warning from the creditor to the debtor through a bailiff, while ingebreke stelling is done without the intermediary of the court. However, in practice, the two are equated.

According to legal scholars, take for example Yahya Harahap[2], somasi is a warning for the debtor to carry out the contract in accordance with the reprimand given by the creditor. Referring to the norm of Article 1238 BW, somasi is used as a reprimand for the debtor as well as a deadline to “wake up” from his failure/delay in performing.

Somasi is divided into several forms, including:[3]

By warrant in the form of a judge's determination and will be delivered by a bailiff (exploit bailiff).
With a deed sent directly by the creditor, whether in the form of a notarial deed or privately drawn up.
Based on the force of the agreement itself, namely since the agreement was made, it has been determined when the default is considered to have occurred.

In addition, it is actually permissible if the warning is given orally[4] because the Civil Code does not regulate rigidly the form of the warning. As with other document deliveries, the delivery of the warning must also include a record of receipt of the warning by the debtor. This is intended to reinforce the good faith of the creditor in resolving the dispute as early as possible.