Background
Bankruptcy and Suspension of Debt Payment Obligations (PKPU) are two legal remedies provided by the Indonesian judicial system that allow creditors to recover debts effectively when a debtor is deemed unable to pay. These procedures are regulated under Law Number 37 of 2004 concerning Bankruptcy and PKPU (Bankruptcy Law), particularly Article 2 paragraph (1), which states that “a debtor may be declared bankrupt if they have two or more creditors and fail to pay at least one debt that has matured and is collectible.” Meanwhile, the provisions regarding PKPU are governed by Article 222 paragraphs (1) and (3), which apply mutatis mutandis to those of bankruptcy petitions.
However, in order for a bankruptcy or PKPU petition to be granted, the law imposes an additional requirement under Article 8 paragraph (4) of the Bankruptcy Law, which states that the facts underlying the petition must be proven in a simple manner. In essence, simple proof requires that the creditor demonstrate two key points clearly: (1) that the debtor has at least two creditors; and (2) that the debtor has failed to pay at least one debt that is due and collectible.
In practice, this requirement often becomes an obstacle. Bankruptcy or PKPU petitions are frequently rejected by the Commercial Court judges due to factors such as the presence of criminal elements, force majeure, ultravires actions, or other circumstances that make it impossible to establish the existence of the debt through a simple verification process. This aligns with the original intent behind the establishment of Commercial Courts, which, as stipulated under Government Regulation in Lieu of Law No. 1 of 1998, were designed to ensure that debt-related disputes—especially in the business sector—can be resolved quickly, efficiently, and simply.
Among the various forms of defense raised by debtors that can render the proof no longer simple, one of the most frequently invoked is the defense known as exceptio non adimpleti contractus. This doctrine often complicates the case, as it introduces a legal dispute over whether the debt even exists in a manner that can be simply proven. This raises the question: What exactly is exceptio non adimpleti contractus, and how significantly does it affect the element of simple proof in bankruptcy and/or PKPU petitions?
Discussion
The doctrine of exceptio non adimpleti contractus stems from the principle of fairness in reciprocal contractual relationships. In such agreements, both parties are obliged to fulfill their respective obligations. This defense is essentially a legal argument stating: “You have not performed your obligation, so you cannot demand that I perform mine.” When one party fails to fulfill their part of the contract, the other is legally entitled to suspend their performance as a form of defense. This principle is clearly illustrated in Article 1478 of the Indonesian Civil Code, which states:
“The seller is not obliged to deliver the goods if the buyer has not paid the price, unless the seller has agreed to a delay in payment.”
From this provision, it is evident that exceptio non adimpleti contractus is a form of active legal defense based on the principle of reciprocity—there is no obligation to perform if the counter-performance has not been made. However, the application of this doctrine in the context of bankruptcy or PKPU petitions introduces further complexity. A bankruptcy petition is premised on the existence of a due and payable debt, which must be clearly proven. But how can a debt be considered proven in a simple manner if its very existence is contested?
When a debtor argues that they are not in default because the creditor failed to perform first, the issue at hand is no longer about an unpaid invoice—it becomes a deeper question of contractual breach. This transforms the nature of the proof from administrative to substantive. When exceptio non adimpleti contractus is invoked in a bankruptcy case, the court is compelled to go beyond merely reviewing billing documents or purchase orders. The judge must analyze the content of the contract, assess whether both parties have fulfilled their obligations, and examine the business interactions between them. In many cases, testimony from witnesses or experts is needed to clarify the matter. As a result, what began as a formal, straightforward process turns into a substantive, interpretive examination. In such scenarios, a bankruptcy or PKPU petition no longer fits the fast-track nature of Commercial Court proceedings and would be more appropriately addressed through an ordinary civil lawsuit.
A relevant example is the Supreme Court Decision No. 704 K/Pdt.Sus/2012 in the case between PT Prima Jaya Informatika and PT Telekomunikasi Seluler (Telkomsel). PT Prima Jaya filed a bankruptcy petition against Telkomsel for allegedly failing to pay a multi-billion rupiah debt. However, Telkomsel argued that the termination of their cooperation agreement was due to PT Prima Jaya’s prior breach of contractual obligations. Relying on exceptio non adimpleti contractus, Telkomsel successfully defended itself. The Supreme Court ruled that because there was a substantial dispute over contract performance, the debt could not be considered proven in a simple manner, and the bankruptcy petition was therefore denied.
This case clearly illustrates how the application of exceptio non adimpleti contractus can significantly affect the course of bankruptcy proceedings. When the very validity of a debt is in question due to alleged non-performance by the creditor, it can no longer serve as a solid basis for bankruptcy. The issue becomes more than just unpaid bills—it becomes a matter of whether the creditor’s claim is legally enforceable based on the contract.
Conclusion
Bankruptcy and PKPU petitions are intended to resolve debt issues swiftly. However, they can only be pursued when the underlying facts can be proven simply. When a debtor raises a defense based on exceptio non adimpleti contractus, the proof process becomes far more complicated, involving deeper inquiries into the parties’ contractual behavior and obligations. In such cases, judges must go beyond reviewing billing documents and consider the actual performance of the agreement, turning the proceeding into something no longer suitable for the expedited bankruptcy process. The Telkomsel case serves as clear evidence that this doctrine can undermine a bankruptcy petition, especially when the claimed debt is still legally disputed.
Ultimately, exceptio non adimpleti contractus is more than just a legal defense—it can be a decisive factor in determining whether a case belongs in bankruptcy court or should instead be resolved through civil litigation.