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A demurrer is an objection or rejection of the claim’s formal legality and is not directly related to the merit of the case. Demurrer broadly includes the demurrer of the competency of the court and the demurrer in addition to the competency of the court. Both types of demurrers are still divided into several types of demurrers known in the theory and practice of civil procedural law.

Exceptie (Dutch), Demurrer (English) generally means exclusion. However, in the context of civil law, it means demurrer/objection, which can be in the form of a plea submitted by the Defendant to the merit of the case toward the Plaintiff’s claim. According to Yahya Harahap, in his book with titled “Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian, dan Putusan Pengadilan” (Civil Procedural Law regarding Claim, Hearing, Confiscation, Exhibit, and Court Decision) explained:

“A demurrer is an objection or rebuttal addressed to matters relating to the conditions or formality of the lawsuit, i.e. if the lawsuit submitted contains defects or formal violations and is not related to the merit of the case (erweer ten principale) which results in an invalid lawsuit so it must be declared inadmissible.”

Of the various types of demurrers that can be raised by the Defendant in the response, the following is an explanation related to two types of demurrers that were quite often raised by the Defendant in the trial, namely the demurrer of obscuur libel and the demurrer of error in persona.

1. What are obscuur libel demurrer and error in persona demurrer, and what is the explanation of the legal elements in both demurrers?

A. Error In Persona Demurrer

Below are the explanations of legal experts in the realm of civil procedural law regarding the error in persona demurrer:

  • Former Supreme Court Judge, M. Yahya Harahap in his book entitled “Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian, dan Putusan Pengadilan” (Civil Procedural Law regarding Claim, Hearing, Confiscation, Exhibit, and Court Decision), 9th Edition, page 438, explained the definition of error in persona as follow:

“Defendant can file this demurrer if the claim contains error in persona defect, also known as demurrer in persona.”

  • M. Yahya Harahap in his book entitled “Hukum Acara Perdata” (Civil Procedural Law), Dinar Grafika Publisher, page 114 said:

“The one who are valid as the Plaintiff and the Defendant are the party who are directly involved in the agreement. Third party cannot become a Defendant, because this will cause the party who is included as the Defendant is wrong or mistaken.”

  • Moh. Romdlon in his book entitled “Pokok-pokok Hukum Acara Perdata” (the Principles of Civil Procedural Law), Fakultas Syariah IAIN Sunan Ampel Publisher, Surabaya, page 12 explained Error in Persona as follows:

“The requirement regarding the content of the statement of claim can be seen under Article 8 No. 3 RV which obliged the statement of claim contains: 4.1. The identity of the party (plaintiff and defendant) or also known as Persona Standi in Judicio. Generally cover the full name, place and date of birth, address, occupation, religion, residence, and the standing as the party in the claim which is filed to the court. This is a formal requirement of a statement of claim to avoid error in persona.”

Below are several Supreme Court Decisions in relation to the error in persona demurrer:

  • Supreme Court Decision No. 639 K/Sip/1975, dated 28 May 1977 which states:

“If one of the parties in a claim does not have a legal relationship with the object of the claim, therefore the claim must be declared unacceptable.”

  • Supreme Court Decision No. 601 K/Sip/1975, dated 20 April 1977 which states:

 “The Plaintiff’s claim is unacceptable, because in the statement of claim the Defendant is not sued individually, in fact in the argument of the claim, it is mentioned that the Defendant as the administrator of the foundation sold the houses owned by the Foundation, the Defendant shall be sue as the administrator of the Foundation.”

  • Supreme Court Decision No. 419 K/Pdt/1988, dated 22 October 1992 which states:

“A legal entity such as Limited Liability Company which have, produce, and sign an “agreement” with other legal subject (if there is breach of contract and compensation claim)shall be filed against such legal entity (limited liability company) and not to the Director (President) of such legal entity.”

  • Supreme Court Decision No. 1771 K/Sip/1975, dated 19 April 1979, which states:

“The claim must be declared unacceptable, because the claim is filed against the Defendant as an individual, meanwhile, the claim is about his action as the offices.”

  • Supreme Court Decision No. 597 K/Sip/1983, dated 8 May 1984 which states:

“The claim against the Defendant I is rejected because he act for and on behalf of the Limited Liability Company, therefore only the Limited Liability Company which can be claimed for the responsibility.”

  • Supreme Court Decision No. 1270 K/Pdt/1991, dated 30 November 1993, which states:

“A cooperation agreement is in line with Article 1340 ICC, only bind the parties who made it and it is wrong to include other party.”

B. Obscuur Libel Demurrer

Below are the explanations of legal experts in the realm of civil procedural law in relation to obscuur libel demurrer:

  • Related to this issue, M. Yahya Harahap in his book entitled “Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian, dan Putusan Pengadilan” (Civil Procedural Law regarding Claim, Hearing, Confiscation, Exhibit, and Court Decision), 9th Edition, page 448 explains obscuur libel as follows

“Obscuur libel means that the statement of claim of the plaintiff is obscuur or vague (onduidelijk). Also known as, the formulation of the statement of claim is unclear. In fact, in order the statement of claim fulfilled a formal requirement; the argument of the claim must be clear or firm (duidelijk).”

“Actually, if we consider Article 118 (1), Article 120, and Article 121 HIR, there are no confirmations regarding making a statement of claim. Nevertheless, the court practice, guided by Article 8 Rv as guidance based on the process doelmatigheid principle (for the sake of procedural).

According to Article 8 Rv, the principle of a statement of claim is together with a clear and certain summation (een duidelijk en bepaalde conclusie). Based on that, the court practice develops the application of obscuur libel demurrer.”

  • Prof. Dr. Sudikno Mertokusumo, S.H. in his book entitled “Indonesian Civil Procedural Law”, 5th Edition, Liberty Yogyakarta Publisher, 1998, page 42, states:

“Therefore, the Plaintiff has to make a clear and firm prayer (“een duidelijke en bepaalde conclusie”, Article 8 Rv). The unclear or imperfect claim can cause the claim to become unacceptable. Also the statement of claim which contains a statement which contradicts one another, called “obscuur libel” (unclear statement of claim and cannot be easily answered by the Defendant, therefore, cause the statement of claim is rejected) cause the statement of claim is unacceptable.

How about “obscuur libel”? The meaning of obscuur libel itself is “a writing which is not clear.” Meaning that the statement of claim contains a statement that contradicts one another (Stein, 1973:94). Generally, a statement of claim which is obscuur libel cause the statement of claim is unacceptable.”

  • Retnowulan Sutantio and Iskandar Oeripkartawinata in their book with entitled “Hukum Acara Perdata” (Civil Procedural Law), Publisher CV Mandar Maju, 2005, page 17, explains:

“In the statement of claim must also complete with prayer, which is what is desired or requested by the plaintiff to be decided, stipulated and ordered by the Judge. This prayer must be complete and clear, because it is the most important part of this statement of claim. If the prayer is unclear or imperfect it may result in the non-acceptance of the prayer. Similarly, a lawsuit containing contradictory statements is called an obscuur libel (an obscure claim or a vague claim), which results in no acceptance or denial of the claim.”

  • Mardani in his book entitled “Hukum Acara Perdata Peradilan Agama dan Mahkamah Syari’ah” (Civil Procedural Law of Religion Court and Sharia Court), Publisher Sinar Grafika, 2010, page 86 explains

“The following systematic is the inclusion of full names and bright addresses of the parties. This is one of the essential factors of the formal requirement of a lawsuit. Regarding the mention of work, age, religion, and citizenship are not necessarily. But more precisely listed to strengthen the truth of the identity of the claim.

The formulation of affirmation of the parties in the claim, the writing directly follows the mention of identity. This assertion is a formal requirement. Negligence on it can be considered an obscuur libel lawsuit. For affirmation of the parties’ position is closely related to the right to defend and defend the parties’ interest. In addition to the factual ground described, the parties’ legal relationship must be affirmed one by one of the parties’ positions in the lawsuit letter. Otherwise, the lawsuit is considered obscure or obscuur libel.”

Below are several of the Supreme Court Decisions concerning obscuur libel demurrer:

  • Supreme Court Decision No. 582 K/Sip/1973, dated 11 November 1975 which states:

“Prayer of the claim requests: 1) determines the plaintiff’s right to the disputed land, 2) Punishes the defendant to stop taking any action on the land. But the right which sued by the plaintiff is unclear, whether the plaintiff wants to be designated as the owner, the holder of the guarantee or the tenant. Likewise the next prayer, it is unclear what action was stopped by the defendant. The Supreme Court believes, because the prayer of the claim is unclear, the lawsuit must be declared unacceptable.”

  • Supreme Court Decision No. 121/K/Pdt/1983 dated 22 August 1984which states:

“The grounds of the claim, starting from the agreement on 11 November 1977, in the form of borrowing money. The payment is with dry cloves of 1.000 kg or with money in amount of IDR 10 million. Starting from that argument, District Court and High Court in the opinion that the claim is obscuur libel for reasons is unclear; even there is no legal relationship (rechtsbetrekking) in material (zakelijk) between the parties, particularly between the plaintiff and the demands. The Supreme Court did not justify the opinion on the grounds that, considering the arguments, it can be concluded that there is loan agreement and the payment can be made with 1.000 kg dry cloves or with IDR 10 million and the payment is made at harvest of cloves. If the factual grounds are linked to prayer of the claim which demanding the defendant is punished to pay clove or money IDR 10 million, it is not precise the decision of judex facti which stated that the claim is obscuur libel, because the plaintiff’s claim is unclear.”

  • Supreme Court Decision No. 1149 K/Sip/1979, dated 17 April 1979 which states:

“If it is not clear the boundaries of the disputed land, then the lawsuit is unacceptable.”

  • Supreme Court Decision No. 81 K/SIP/1971, dated 9 July 1973 which states:

“Considered on the basis of on the spot examination by the District Court on the orders of the Supreme Court, the land that was controlled by the defendant was not the same limitations and extent as stated in the lawsuit, therefore the lawsuit was unacceptable.”

  • Supreme Court Decision No. 28 K/Sip/1973, dated 28 January 1976 which states:

“The plaintiff argues that the disputed land originated from the joint purchase of the plaintiff and the defendant. Apparently the defendant has sold it without the plaintiff’s consent. On that basis, the plaintiff declares the sale to be illegal. However, in the prayer, the plaintiff requests to the court by punishing the defendant to share the sale proceed. That prayer is considered by the Supreme Court as opposed to the factual grounds. The factual ground says the sale is illegal but the prayer demands a share of the proceeds. Therefore the lawsuit becomes obscure and vague and unacceptable.”

  • Supreme Court Decision No. 556 K/Sip/1973, dated 21 August 1974 which states:

 “If the object of the claim is unclear, then the claim is unacceptable”;

Based on the opinion of legal experts and also Supreme Court Decisions above, it can be summarized that the elements which can be categorized as Error in Persona and Obscuur Libel demurrers are as follows:

Elements of Error in Persona Demurrer:

  • The party referred to as the defendant is the wrong party.
  • The party referred to as the Defendant is not an authorized party or has rights in the case.

Elements of Obscuur Libel Demurrer:

  • Factual grounds and prayer of the claim is irrelevant and or contradictory.
  • Legal basis of the claim is unclear.
  • The object disputed by the plaintiff is unclear.
  • The prayer of the claim is unclear.

2. When is the timing to make such demurrers and when the court makes a decision on them (e.g., at the interlocutory stage or after the hearing of the merits of the case);

Based on Article 136 HIR, it can be interpreted that all demurrers except demurrer on jurisdiction must be submitted together with the Response to the merit of the case. Therefore the demurrer of error in persona, obscuur libel, Lack of Party, Premature, and other demurrers outside the demurrer on jurisdiction, should be filed together with the Response on the merit of the case.

Furthermore, the court will examine and issue a decision on such demurrers together with the merit of the case. Thus, the court will not issue an interlocutory decision for those demurrers. The court will only issue an interlocutory decision for demurrer on jurisdiction.

3. What are the consequences if the demurrer is successful?

As the District Court Judge reads the final decision, the judges will first convey the legal considerations related to those demurrers. For example, in considering the demurrer of error in persona, the panel of judges agree with the argument that the placement of Company A as Defendant I and the placement of Company B as Defendant II is an error in persona or wrong, the judges will accept the demurrer and issue a decision saying that the Claim is unacceptable on the basis the Plaintiff in their Claim has mistakenly placed the two companies that have nothing to do with the case as the Defendant I and the Defendant II. Since the error in persona’s demurrer is rendered, the panel of judges will not give any legal consideration concerning the arguments, written documents, lay witnesses, experts (evidence) presented by the parties in relation to the merit of the case. Thus the legal consideration of the Central Jakarta District Court’s decision will only consist of several pages or briefly because the judge will not give any legal consideration concerning the arguments and evidence in relation to the merit of the case.

Likewise, for example, if the judge is of the opinion that the claim is vague and obscure (obscuur libel) because, for example, the factual grounds and prayers of the Plaintiff’s claim are irrelevant or contradictory, the panel of judges shall issue a final decision stating that the claim is unacceptable. Since the obscuur libel demurrer is accepted, the judge will not give legal considerations related to the arguments and evidence relating to the merit of the case.

Against the final decision granting the above mentioned demurrers, the plaintiff has two options toward the Decision. First, the Plaintiff may file an appeal, or second, the Plaintiff does not make an appeal but make a revision and file a new/fresh claim with the same merit of the case in the District Court. For instance, if an error in persona demurrer is accepted in this case, then the Plaintiff may choose not to appeal and then submit a new claim (fresh claim) without including Company A and Company B as defendants in the new claim.

4. What arguments can be filed by the Defendant to support these demurrers?

To support the Error in Persona Demurrer, the Defendants may file the following arguments:

  • The Defendant can file an argument that they are not involved in the related case, where this argument can be supported with written evidence and witnesses. So, Defendant’s placement, in this case, is mistaken and leads the Plaintiff’s claim to error in persona. In other words, the Plaintiff has conducted a fatal mistake by involving the Defendant in this case.

Regarding the arguments to support the obscuur libel demurrer, the Defendant may file the below arguments:

  • Factual grounds and prayer of the claim is irrelevant and or contradictory.
  • Legal basis of the claim is unclear.
  • The object disputed by the plaintiff is unclear.
  • The prayer of the claim is unclear.

5. Does a summary of any documentary and witness evidence required for these demurrers?

To support those demurrers, the defendants have the right to file supporting documents such as expert opinions and previous Supreme Court Decisions. The defendant is also allowed to present civil law experts who will explain the understanding of these demurrers and how they are applied in previous court decisions.


In previous cases, quite a lot of parties who propose civil law experts to strengthen their demurrers. On the other hand, there are also parties who did not propose civil law experts on the grounds that the Judges already understand the civil procedural law, so there is no need to present an expert in civil procedural law.

Hope it is useful.

FREDRIK J. PINAKUNARY Law Offices

This article is also available in Bahasa Indonesia: Penerapan Eksepsi Obscuur Libel dan Error In Persona.


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