Passive subjective novation in credit arrangement: Legal assurance and protection capability

Abstract

The legal vacuum regarding Passive Subjective Novation causes legal uncertainty and creates problems because there are no clear references in terms of understanding, implementing regulations, and standard operating procedures. The purpose of this research is to find out the right arrangement related to Passive Subjective Novation so that it can provide legal certainty and protection. This research is normative juridical research using an analytical approach and a conceptual approach as well as analysis techniques of grammatical interpretation, systematic interpretation and teleological interpretation to analyze primary, secondary and tertiary legal materials. The results of this study indicate that there are two ways of legal protection in the passive subjective Novation case, namely preventive and repressive legal protection. Preventive legal protection can be done by making a new statutory regulation or adding provisions to existing laws and regulations regarding passive subjective novation of credit agreements by using mortgage guarantees. Meanwhile, repressive legal protection can be carried out by giving sanctions to violators of the agreement that has been made related to passive subjective novation of credit agreements by using mortgage guarantees, namely in the form of compensation, fulfillment of achievements, and a combination of compensation and fulfillment of achievements.