LEGAL WRITING

__________________________________________________________________
Date

: January 19, 2015

To

: Arie Armand

Cc

: Robbie Aryawan H.

From

: AKS

Subject : Shareholder Can Sell Its Shares That Has Been Pledged
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A pledge is one of the form of security. In Indonesian Civil Code, pledge can be
encumbered to moveable objects whether its tangible or intangible. Shares as a
intangible moveable object can be encumbered by pledge. It is obviously stated in
article 60 (2) Law number 40 year 2007, shares can be encumbered by way of
pledge or fiduciary security, unless otherwise stipulated in the articles of
association. After shares has been encumbered by pledge, there is a question
whether a shareholder can sell his shares that has been pledged or not?
To answer that question, its necessary to explain about inbezitstelling principle.
One of the conditions of pledge is inbezitstelling. Many peoples thought that
inbezitstelling is just about placing the pledge to the creditor or pledgee. But
actually the essence of inbezitstelling principle is to eliminate power of the debtor
(pledgor) from the pledge. It is like what indonesia civil code stated in article
number 1152 a pledge right in respect of tangible moveable assets and debts
payable to bearer shall be established by placing the pledge in the power of the
creditor or a third party, who has been mutually agreed upon by the parties.
Based on article 1152 civil code above, inbezitstelling is not only about placing the
pledge to the pledgee, but it to eliminate power of the pledgor from the pledge,
bacause in article 1152 pledge also can be placed to a third party.
So, according on the explanation above, a shareholder can sell its shares that has
been pledged as long as the parties has been agreed and the debtor has told the
third party. Because its just like article 1152 stated that the pledge can be placed
to a third party, in this case the third party is someone who wants to buy shares
from shareholder that has been pledge. In case the debtor (pledgor) has neglected
its obligations to creditor, creditor can still make the execution of the pledge as
article 1155 and article 1156 civil code. This is due to the principle of droit de
suite which means the rights of property always follow the object wherever it is.
And for the third party who wants to buy the debtors shares that has been
pledged, it is his risk to buy the shares that has been encumbered by pledge,
because any time the pledge can be executed by the creditor if the debtor has
failed fulfill its obligations to the creditor. Maybe there are some economic reasons
for the third party to buy shares that has been pledged, like for the purpose of
acquisition. So, based on explanation above, shareholder can sell his shares
eventhough that shares has been encumbered by pledge, as long as the parties
agreed about it.