PERSPEKTIF POSITIVISME HUKUM TERHADAP KELALAIAN PEMBELI DALAM TRANSAKSI JUAL BELI TANAH

Abstract

This article analyzes the legal standing of a good-faith purchaser in a land and building transaction marked by procedural negligence and the seller's bad faith in encumbering the property with a mortgage right (Hak Tanggungan) in favor of a third party. Drawing on Supreme Court Decision Number 1555 K/Pdt/2026, this normative legal study examines the tension between land law formalism and substantive justice. Relying on the contract theories of Subekti and J. Satrio, it draws a firm distinction between obligatory agreements and the transfer of proprietary rights (levering). The findings show that, at the level of Das Sollen, a buyer who has paid a down payment and taken physical possession of the object deserves protection under Article 1338 paragraph (3) of the Indonesian Civil Code and Supreme Court Circular Letter Number 4 of 2016. At the level of Das Sein, however, the absence of a registered transfer before a Land Deed Official (PPAT) meant that levering never took place, so the proprietary right remained with the seller, who then abused that right (misbruik van recht). The judicial reasoning that rejected the buyer's claim is consistent with legal positivism, since it preserves legal certainty in land registration and protects the lawful secured creditor. Protection for the negligent buyer is more appropriately pursued through a breach of contract claim under Articles 1238, 1243, and 1267 of the Civil Code.