COMPILATION OF ESSAYS AND MINUTES

REGARDING THE TOPICS THAT IS LEARNED IN

ADAT INHERITANCE LAW
KKI 2014

GROUP 9
GHALI FAIRUZY WINDIANSYAH

1406640291

ANNISA LINTANG JANTERA

1406640266

Ghali fairuzy windiansyah

1406640291
Annisa Lintang Jantera
1406640266
Subject: Adat Inheritance Law
TOPIC 1
Law of Persons
In Adat Law Perspective
There are 2 types of persons in adat law which are the Associations
and the Natural Persons which both of them are completely in one scope,
which natural persons is the human themselves (human being human being)
while Associations is a juridical person (person made by law).
The Associations:
It is an independent unit that is recognized legally which they are
capable of gaining or utilizing or owning money, a building or a land. The
officer of the associations is the one who is capable of doing legal
transactions, acting as the associations representative to do legal action.
The term association in Adat law is not the same as the Western Laws
juridical personality as a result, the association may be subjected as a
plaintiff or defendant in the court room, and the associations property is
giving rise to obligation to the propertys respective association. The officer
whom act as the tool for the association to do legal transactions, means that
they also have legal responsibility, as well as the other members of the
association, this legal responsibility is depending on the decisions made
inside the associations that is influenced by concrete local factors.

The Natural Persons:

Natural person means that human being a human itself, it is divided
into male and female, which in Adat Law, Adult Female and Male have the
legal competency to do a legal action with the limitation of the regulation
made in the family and extended family bonds. In Adat Law, married woman
can do legal act independently, even though she is in the patriarchal sphere,
unlike the Western Law which the married female is not capable of doing
legal act (she must be accompanied by her husband), but in Indonesia it is
have been revoked by Surat Edaran Mahkamah Agung.
The term legal competence is really important in law of persons, because
it is the gateway of one of the requirements of a person to enable them
acting fully in doing legal actions. In all legal action that has been done, not
all people is legally competent in doing legal actions which the one who is
not legal competent are:

Minors: is a person who is underaged, less than 21 years old in the

western legislation, while in modern areas it is less than 18 years old
while in adat law, the person who is a minority means they are not
Kuat Gawe yet. Minorities are given rights to pledge an appeal in the
court if they are placed under guardianship to terminate the status of
minority, so that they can fully be legal competent in doing legal

actions.
Insane person: a person who experiences mental illness, it is actually
fine for them to do legal actions as long as they are still controllable
and not dangerous, but the legislation said that insane person is not
capable of doing legal actions whereas their legal actions would be
considered as null and void, which means it is legally cancelled.

As the person who experiences legal incompetence can do legal actions if

they have guardian with them who is taking care of them, forexample the

minority can do legal actions with the help of his/her parents acting as their
guardian, as well as the woman that has no husband may be represented
(wali) by the male member of the family exclusively in the male line. The
term guardian in adat has lots of terms which in Java it is called jugul, in
Ambon perlindungan , while generally in adat speaking it is called wakil.
This guardian system occurred because it is understood that even people
experiencing legal incompetency have their own needs (kepentingan), which
they have urgent situations concerning about their needs which this is
commonly practiced in the adat communities among the relatives.
The

guardianship

is

also

connected

with

the

term

representatives, which they may sounds similar, but guardianship is more

suitable

to

person

who

is

legally

incompetent

while

the

term

representatives means that they are legally competent but they are in
absence in doing legal actions which they are represented by an acceptable
person, which the practice of this can be seen in Lampongs, where an
acceptable person may represent chief of the community. There are 2 types
of representatives known in adat law which are the temporary and
permanent, temporary is merely a short time period representing the chief,
while permanent (pegang penyambut) is when an acceptable person acts
behalf of the chief, which the chief still alive, but they are always
represented by that person that serves the purpose because the chief is
unwilling to be the tools of Dutch colonization such as printah in Lampong,
aso blanda or the most cruel thing is that it is called European puppy dog,
which for the chief of adat, it is the worst thing possible as it is the same as
destroying their own reputation if they follow the Dutchs administration.

In Western Law perspective (according to B.W. Civil

Code)
In western law, they recognize 2 types of person which are the
Rechtpersoon and the Naturalijkpersoon, Rechtpersoon is the person that

is recognized legally (which this is a group of (Naturalijkpersoon), while

Naturalijkpersoon is an individual person (manusia pribadi).
Rechtpersoon:
It is a fictional person that is recognized by law, which this fictional
person can act in full legal competency just like a fully competetnt
naturalijkpersoon, which the fortune is different from the fortune of
naturalijkpersoon, as this means that the fortune is owned by the
rechtpersoon itself, it is not mixed with the fortune of naturalijkpersoon.
The requirements to establish a rechtpersoon are as follow:
1. Has a wealth of its own apart from the wealth of its members;
2. In ratified by the authorities;
3. Having a goal.
A rechtpersoon can be requested for approval as a legal entity by
way of:
1. Established by notarial deed;
2. Registered at the local district court clerk's office;
3. The budget approval is sought essentially to the minister of Justice; and
4. The news was announced in the country.
The terms of the establishment of legal entities are:
1. The existence of a separate wealth treasure;
2. Have a specific goal;
3. Having its own sake;
4. There are organizations that regularly; and
5. The act of a legal entity.
The division of the legal entity (rechtspersoon) is distinguished in
two forms, namely:
1. The legal entity is public when it is incorporated under public law or legal
entities of public interest is a state bodies and has the regional power or an
institution established by the ruling under the laws that are functionally
executed by the government. for example: the Republic of Indonesia.

2. Civil or private legal entity is a legal entity established under the civil law
or criminal law concerning the interests of the person in the legal entity. For
example: limited liability company (PT).
Naturalijkpersoon:
The meaning of naturalijkpersoon is that a person being a person
where he have body, legs,hands etc, also the human that lives in a society
and has mutual relationship with the society, also the human as a subject of
law which human can be imposed / supports rights and obligation which can
give rise to legal relationships. The law of persons in the Civil Code is
contained in Book I.
Human as subject of law has an exception that is contained in Article 2
of Civil Code that says: "The child in the womb of a woman is considered to
have been born (the subject of law) where the interests of the child when
such wills of inheritance and if the child died at birth are considered as never
existed." Which means that even the child that is still inside the womans
womb is considered to be the subject of law, because that child has
interest in the aspect of inheritance (it is assumed that the child will be born
to the world), but if the child died before being born, the childs interest will
be considered never existed.
This topic also covers about legal competency in a person, which the
person who is considered not competent in doing legal actions are:

A person that not yet reach the age of 18, or a person that have not

married yet.
A person that reached the age of 21 (has full legal competency in
doing legal actions) but they are under curatele because they are
spendthrift, mentally ill, or drunkard.

In Islamic law perspective:

In Islamic law there are also 2 types of legal subject, which are :
narutalijkpersoon and rechtpersoon, all of these subject needs to be

Mahkum Alaihi, which this is a person that is entitled to be called Mukallaf

(a person who reached an acceptable common sense so that they have full
capacity in doing legal actions).
There are stages in islamic civil law that is concerned about when can a
person can be imposed rights and obligations, which the stages are:

Marhalah al-janin (embryonic stage)

This stage begins from the time the fetus is in the womb to be born alive.
Fetus may acquire the right, but not the obligation to carry out the law.

Marhalal al-saba (childhood stage)

This phase started since human beings are born alive until she was seven (7)
years. Rights and obligations concerning his belongings carried by her
guardian (Guardian).

Marhalal al-Tamyiz (Discernment Stage)

This stage began an age of 7 (seven) years until puberty (Aqil-Baligh). At this
stage can get half their capacity as legal subjects (without the consent of her
guardian). All aktivilas / transaction, receipt of rights committed by children
mumayyiz is valid (valid). While the transaction may harm / reduce his rights,
"non-valid" unless permission or authorization of her guardian.

Marhalal al-bulugh (stage of puberty)

At this stage a person has reached Aqeel-Baligh and under normal

circumstances it is considered to be mukallaf. Physical signs when a woman
has been coming month (menstruation) and the male has undergone
changes and physical voice, someone who is already at this stage is called
"Al-existing Ahliyyah Al-Kamilah".

Recycling al-Rushd (Stage of Prudence)

At this stage the person's capacity as a subject has been perfectly legal,
because the offense had been able to act for the sake of security in
managing and controlling property and businesses / business invitation wise.
There are also legally incompetent person in Islam which are:

Minors

Insanty/Junun Mentally ill

Idiocy/Atah - Idiots
Prodigality/Safah - Spendthrift
Unconsciousness/Ighma - Unconscious
Sleep/Naum
Error/Khata dan Forgetfulnes/Nisyan (kesalahan dan terlupa) - Khilaf
Acquired Defects Awarid Mutktasabah Mind defects

Rechtpersoon in Islamic law is based on hadis, where it is stated that it is

a group of naturajikpersoon united to become one, that can do a legal action,
and has the rights and can be imposed an obligation. This is legally
recognized by as a legal body by Ministry of law & human rights in the
Modern era (in Indonesia). For example: Waqaf, foundation etc.

MINUTES
Damar
In adat community is there a hierarchy/social structure and if there is why is there no border
between public law and private law?
There is, which is divided into small communities, led by community elders, in which problems
are solved through musyawarah mufakat
Gianna
Adat law never shifted in political changes, can you elaborate?
So when Dutch went to Indonesia, Dutch does not vanished the adat law, so the Dutch law is the
one that adapts to the adat law in Indonesia, so politics are not changing, the law also not
changing, but the one that changes is the point of view. So politics always connected to the
community law.

Raymond: It is relevant though because we as legal persons are always engaged in community,
and in communities, politics is always involved in legal communities.
Ahmad
Can you explain your conclusion?
Ghali
What is the main diff between legal person in adat law and western law?
Oddy
What is the perks of being legally competent in adat law?