Legal Literacy - If you, as a creditor, want to file for bankruptcy against your debtor, the question that arises is whether it is necessary to send a summons first before filing for bankruptcy? The answer is yes, it is necessary. See the explanation in the following article.

Definition of Summons

A summons or reprimand is a warning from the creditor to the debtor to fulfill their obligations in accordance with the reprimand for negligence that the creditor has conveyed to them. In it, the creditor expresses their desire that the agreement be implemented within a certain period of time.

Although this term is not known in the Civil Code Civil law (KUHPer), the legal basis for summons is regulated in Article 1238 of the KUHPer. This article states that the debtor is declared in default by a warrant, or by a similar deed, or based on the power of the engagement itself, namely if this engagement results in the debtor being deemed in default with the passage of the specified time.

The Importance of Summons Before Bankruptcy

In practice, even though an engagement has determined a deadline for the implementation of an achievement, the party creditor will still send a letter of reprimand as a sign that the debtor has been warned and/or declared in default in writing.

A summons is required in the event that an engagement does not specify a deadline for the implementation of the achievement, because the declaration of default is substitutive. In this case, a letter of reprimand is needed to make a claim to the authorities to fulfill their obligations immediately or within the time mentioned in the letter.

However, a summons does not only apply to the case above. If the agreement stipulates a certain time for the debtor to perform, this does not mean that by violating that time the debtor has committed a breach of contract. For this, a determination of default is still needed. In this case, a letter of reprimand is also needed as proof of the determination of default.

Types of Events That Do Not Require a Summons

In the book "Principles of Engagement Law" written by J.H. Nieuwenhuis, it is explained that there are five types of events that do not require a declaration of default, namely as follows:

1. Debtor Refuses Fulfillment.

The creditor is not obliged to give a reprimand if the debtor refuses to fulfill their obligations, because the summons will not change that attitude of rejection.

2. Debtor Acknowledges Their Negligence.

The debtor's acknowledgment of their negligence can be explicit or implicit, such as when the debtor offers compensation.

3. Fulfillment of the achievement is not possible.

The debtor is considered in default without the need for a summons, if the achievement that must be carried out is no longer possible, for example because the goods that must be handed over have been lost or destroyed.

4. Fulfillment No Longer Means Anything (Zinloos).

A summons is not needed if the debtor's obligation to give or do something can only be done within a certain period of time, which has passed, such as for example wedding clothes or a coffin that is handed over after the wedding or funeral no longer has any meaning.

5. Debtor Performs Achievement Improperly.

In the event that the debtor does not fulfill their obligations properly, the creditor does not need to give a summons and can immediately declare the debtor in default.

Conclusion

From the explanation above, it can be concluded that a summons before filing for bankruptcy is very important because it can provide evidence of the debtor's default. A letter of reprimand is also needed as a sign that the debtor has been warned and/or declared in default in writing. So, before taking further legal action, the creditor is obliged to give the debtor an opportunity to settle their debt through the summons letter. The summons letter usually includes the amount of the debt, the payment deadline, and legal consequences that will be applied if the debtor does not pay their debt.

In some cases, a demand letter can be an effective initial step to resolve disputes between creditors and debtors without involving the courts. If the debtor responds by paying the debt in accordance with the terms in the demand letter, the matter can be resolved quickly and without incurring significant costs to obtain assistance from the court. However, if the debtor still does not pay the debt, the creditor may take further legal action, such as filing a lawsuit in court or using the services of a professional debt collector to collect the debt from the debtor.

References

  1. Joko Sriwidodo and Kristiawanto. Understanding Contract Law. Yogyakarta: Penerbit Kepel Press, 2021;
  2. M. Khoidin. Liability in Civil Law. Yogyakarta: Laksbang Justitia, 2020;
  3. Setiawan. Fundamentals of Contract Law. Bandung: Penerbit Binacipta, 2007
  4. Subekti. Fundamentals of Civil Law. Jakarta: Penerbit PT. Intermasa, XXXI Edition, 2003;
  5. Wirjono Prodjodikoro. An Anthology of Scattered Legal Essays. Jakarta: PT Ichtiar Baru, 1974.
  6. Civil Code;
  7. Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations as amended by Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector.