COMPARATIVE STUDY OF GUARANTEE LAWS ACCORDING TO ISLAMIC LAW AND CIVIL LAW IN POSITIVE LAW IN INDONESIA

Abstract

The Law of Guarantee is the whole of the legal rules that govern the legal relationship between the giver and the recipient of the guarantee in relation to the imposition of collateral to obtain facilities / credit. In general, guarantees in Islamic law (fiqh) are divided into 2 (two), namely guarantees in the form of people (personal guarancy) and guarantees in the form of property. The first is often known as dlaman or kafalah. Whereas the second is known as rahn. The formulation of the problem is how is the comparison of guarantee law according to Islamic law and civil law in positive law in Indonesia. The research method is normative juridical. The results of his research are the existence of guarantees recognized in Islamic law. For guarantees provided by other parties for obligations / achievements that must be carried out by the guaranteed party (debtor) to the party entitled to fulfill the fulfillment of obligations / achievements (creditors) referred to as kafalah. While guarantees related to objects / assets that must be given by the debtor (the person in debt) to the creditor (the person in debt) are called rahn. In the legal system in Indonesia, guarantees are classified into guarantees that are born because they are determined by laws and guarantees born of agreements, general guarantees and special guarantees, collateral that is material and individual rights, collateral for movable objects (onroerende goederen) and objects immovable (onroerende zaken), guarantee by mastering the object and without mastering the object. 

Keywords: Comparative Assurance, Islamic Law and Civil Law.