Hak Tanggungan Vs.

Mortgage: Outlining Issues in Translating Indonesian Legal Term via

Natural Semantic Metalanguage
Rima Muryantina
Arie Hutagalung and Partner (Law Firm)
greenmidorima@yahoo.com

In Indonesian Agrarian Law, there are several legal terminologies and concepts that are hardly present
in other countries. The term like Hak Tanggungan, for example, carries both historical and cultural
backgrounds which don’t exist elsewhere in the world. Some translators might not be aware of the
uniqueness of the term and translate this term into ‘mortgage’ in English, which they consider as the
closest equivalent of the Indonesian counterpart. In this paper, I’m going to use the Natural
Metalanguage approach to depict the uniqueness of Indonesian Agrarian term, Hak Tanggungan, that
makes it hardly translatable into similar terms in English. By outlining the meaning via Natural
Semantic Metalanguage approach, I wish to be able to give clear definition of Hak Tanggungan from
the cultural and historical perspectives of Indonesian Agrarian Law without mixing it with English
perspectives or the perspectives of any target language, into which the term is translated.

Keywords: Indonesian Agrarian Law, Translation

Difficulties In Translating Indonesian Agrarian Legal Terms

Like many other types of translation, translating legal terms is not simply an act of changing
from one language to another word by word. A legal translator doesn’t simply change the forms within
a legal text from one language to another, but also convey the meanings of the text, so that it could be
understood by the readers of the text. Hence, a legal translator should not restrict themselves in
linguistic domains only, but also should have a great knowledge and familiarity with legal
terminologies (Halim 2006, pg. 100).
Very often, a legal translator faces a problem when a legal system implemented in the country
where the source language is used is different from the one implemented in the country where the
target language is used. As a result, there are some problems in translating legal terms from one
language to another, especially those terms that carry cultural-specific concepts. These problems, in
practice, apply to translations of Indonesian Agrarian Legal Terms.
Indonesian Agrarian Law, in its principles, has a distintive system and implementation due to
its historical background. Before the implementation of Basic Agrarian Law in 1960, Indonesia had a
dualistic land law system, with Customary Land Law and Western Land Law both prevailed
(Hutagalung, et. al. 2005, pg. 5). The dualistic system was implemented in the country during the
colonialization of the Dutch Goverment. During this era, a Customary Land Law acted as an unwritten
law (pg. 5), while the Western Land Law was the official written law regulated by the Dutch
Govermnemnt (pg. 5). It should be noted that what is meant by the ‘Western Land Law’ here is
different from the one implemented in Anglo Saxon countries like the United Kingdom or the United
States.
The concepts implemented in the Indonesian Basic Agrarian Law, is then highly influenced by
its long history, as it adopts both the concepts implemented in the Customary Land Law and the ones
in the Western Land Law. Thus, we recognize some Indonesian Agrarian Legal terms and concepts
like Hak Eigendom, Hak Opstal, Hak Erfpacht, Hak Ulayat, Tanah Swapraja, and Hak Tanggungan,
which don’t exist in the Land Law systems implemented in Anglo Saxon countries or other countries
where English are spoken. Hence, some problems might occur when translating these terms into
English, considering that the text should be understood by the speakers of the target language.

Hak Tanggungan, Mortgage, and Other Possible Translations

In this paper, I would like to discuss the translation of one of the Indonesian Agrarian Legal
Terms, Hak Tanggungan. Some English legal texts treat the word as an equivalence of ‘mortgage’ in
English. For example, in SRIRO’s Desk Reference of Indonesian Law 2006, Andrew I. Sriro treats the
term interchangeably with the term ‘mortgage’ (Sriro 2006, pg. 181). Similarly, in Indonesia Business
Law Handbook, the term is also used interchangeably with ‘land mortgage’ (International Business
Publications USA 2008, pg. 262). The translations of Hak Tanggungan in these books indicate that the
readers of the books, who presumably speak English, are expected to understand the concept of Hak
Tanggungan from the perspective of English terms ‘mortgage’ and ‘land mortgage.’ However, are
these concepts are actually the same as or at least the closest equivalences of Hak Tanggungan?
Before moving on to the answer, let’s take a look on another translation of Hak Tanggungan
suggested in an English legal text. In the book entitled Indonesian Security Interests, the definition of
‘mortgage’ is separated from the definition of ‘Hak Tanggungan’, which is translated as Encumbrance
Right in English (Tesalonika 2001, pg. 35, pg. 39). The separation of the meaning and the use of the
two terms might be an effort to distinguish between the concept of Agrarian Law implemented in
Singapore and the one in Indonesia. This shows that the concepts of the two terms are actually
different from one another, due to the different historical and cultural backgrounds of the two
countries.
According to the Indonesian Law on Hak Tanggungan, Hak Tanggungan is a Security Right
encumbered on the Right on Land as mentioned in the Law No. 5 of 1960 on the Basic Agrarian Law,
including the other properties that are considered as the integrated parts of the land, to pay particular
debts, which give priority to particular creditors over other creditors (Sjahdeni 1999, pg. 11).
Meanwhile, the definition of mortgage in English-speaking countries is a conveyance of a legal or
equitable interest in property with a provision for redemption, that upon repayment of a loan or the
performance of some other obligations, the conveyance shall become void or the interest shall become
re-conveyed (Harpum et.al. 2000, pg. 913). From these definitions, we can see that there are some
components of the meaning of Hak Tanggungan that are indeed similar to the ones in the meaning of
‘mortgage.’ They both involve a transaction between the two parties: someone who provides a loan
(creditor) and someone who should pay the debt (debtor). Other than that, both definitions indicate
that a land and some other properties related to the land are used as the guarantee of the transaction.
The next questions will be: what are actually the components that make these two terms semantically
different despite the similarities that they share? Can these two terms be considered as equivalences
that they can interchangably become translations to each other? I will try to answer these questions by
breaking down the core components of the two terms, Hak Tanggungan and ‘mortgage’ via the
Natural Semantic Metalanguage approach, as follows.

Outlining the Meaning of Hak Tanggungan via Natural Semantic Metalanguage

The Natural Semantic Metalanguage is a linguistic approach that can define meanings in the
simplest and clearest way as possible. The approach was first initiated by the Polish scholar Andrzej
Boguslawski, and later developed and elaborated by Anna Wierzbicka (Goddard 2009, pg. 56). An
ideal NSM semantic analysis (often called explication) consists of the simplest terms which have
equivalents in all languages in the world (pg. 56). These simplest terms are called as semantic
primitives or semantic primes (pg. 57). This approach provides the way to avoid ambiguity,
circularity, and obscurity that might cause misunderstanding if a vocabulary from one language is
translated into another language. In other words, the NSM approach aims to provide one language to
people who speak different languages from different cultures, from the light of the perspective of its
native language and culture. In some cases, an explication could be too complex as the vocabularies
used for this approach are limited. In cases like this, we might use semantic molecules, non-prime
vocabularies, that can be used in a semantic explication since it is the core meaning of the unit
described in the explication (Goddard 2008, pg. 19). I expect that the expliations of Hak Tanggungan
and mortgage would be the complex ones, so I decided to use some semantic molecules, which will
later be explicated in my forthcoming essay, which I willl use as the complementary essay for related
projects.
The popular issue in understanding the definition of the meaning of a linguistic unit is the
‘circularity issue’, due to the words used in defining the meaning (Saeed 2011, pg. 6). In the
definitions of Hak Tanggungan and mortgage mentioned previously, there are some terms used such
as ‘creditor’, ‘property’, ‘debt’, ‘pay’, ‘repayment’, ‘security right’, ‘encumber,’ and ‘redemption’,
which might not be understood by people who don’t share knowledge and experience on the words,
especially those who are not familiar with business and legal terms. To avoid this issue, I decided to
use the Natural Semantic Metalanguage approach to break down the components of the meaning of
each term with the simplest linguistic units that are possibly available in all languages in the world.
This way, I wish to give a clear depiction of how Hak Tanggungan and mortgage differ from one
another in terms of meanings. The following is the NSM explication for Hak Tanggungan.

Hak Tanggungan
1
it can be like this:
2
when X wants to do something to/on a land [m] in a place,
3
X can’t not do this with money [m]
4
because of this, X can borrow [m] money [m] from Y
5
Y wants to know: X will return [m] the money [m] at some time
6
if X can’t do this at some time, Y can sell [m] a land [m]: maybe this land [m], maybe
another land [m]
7
if X can’t do this at some time, Y can sell [m] things on this land [m]

The first component of the explication starts with ‘it can be like this’, which indicates that the
linguistic unit being described is a ‘situation’ that possibly happens, not a person, nor a living thing.
Then, the second and the third components of the explications indicate the requirement of when such
situation could possibly happen. The second component describes that Hak Tanggungan could apply
when a person (X) wants to cultivate a land or to build something upon a land in a particular place,
which is Indonesia. Meanwhile, the third component describes that X needs money to cultivate or to
build something on the land. Hence, the fourth explication represents the possibility of X to borrow
money from someone else or an institution (Y). This shows that Hak Tanggungan happens due to a
transaction between one party with another party that provides money, most likely a bank (Hutagalung
2008). The guarantee of this transaction is then depicted in the fifth component that describes Hak
Tanggungan as a security right, as mentioned in the Basic Agrarian Law (Sjahdeni 1999, pg. 11).
Afterwards, we can see that the consequence of the guarantee is that if X as the debtor cannot pay
his/her debt for the agreeable time, Y as the creditor can sell a land to other people via auction
(Hutagalung 2008). The land used as the guarantee could be the land on which X wants to use, or
another land owned by X. Finally, the seventh component represents that the object being used as the
guarantee is not only the land, but also other properties united to the land (Tesalonika 2001, pg. 43).
Meanwhile, the NSM explication for mortgage is as follows:

Mortgage
1
it can be like this:
2
when X wants to do something to/on a land [m] in a place,
3
X can’t not do something with money [m]
4
because of this, X can borrow [m] money [m] from Y
5
Y wants to know: X will return [m] the money [m] at some time
 6
if X can’t do this something at some time, Y can have a land[m]: maybe this land [m], maybe
another land [m]
7
if X can’t do this something at some time, Y can have things on the land [m]

From the explication, we can see that the components 1-5 is the same as those components in
the meaning of Hak Tanggungan. However, there is a significant difference between Hak
Tanggungan and mortgage in terms of the consequence occured when the debtor could not pay the
debt. In mortgage, if the debtor could not fulfill his/her obligations, the land and the properties united
to the land is transferable (Tesalonika 2001, pg. 36). This is defined in the components 6-7 in the
semantic explication, that if the creditor (Y) can own the land and other properties united to it. This
could not happen in Hak Tanggungan, as the creditor (Y) cannot own the land and the properties
united to it, but only has the right to sell them via auction (Hutagalung 2008). In other words, the
execution of mortgage involves transfer of right/title, while the execution of Hak Tanggungan doesn’t.
The nature of Hak Tanggungan is different from mortgage because the Land Law system in Indonesia
is highly influenced by the system implemented by the Dutch Goverment during colonialism, making
it different from the Land Law system implemented in English-speaking countries. If the two terms are
treated as the same, the English speakers who are not familiar with the term Hak Tanggungan might
consider the execution of Hak Tanggungan is the same as the execution of mortgage. In practice, this
will lead to misconceptions and misconduct in legal activities, which might cause more complicated
problems like conflicts between the debtor and the creditor regarding the execution.

Conclusion and Suggestion for Appropriate Translation

From the two explications above, we can see that even though Hak Tanggungan and mortgage
share similar components in their meanings, but there is a core difference between the two terms that
make them uninterchangable to each other. As this difference involves the basic nature of the terms, I
would not propose ‘mortgage’ as the appropriate translation for Hak Tanggungan. Treating these two
terms as equivalences might mislead the readers in understanding the concept of Land Law system
impemented in Indonesia, and might lead to crucial impact for business and legal transactions related
to a land in Indonesia.
The best suggestion might be keeping the term Hak Tanggungan as it is and describing it with
the definition written in the Basic Agrarian Law. Comparing it with familiar English legal terms might
work for several types of text to help the readers relate with the term, but the translator should bear in
mind that adjusting to the interest of the speakers of the target language does not mean neglecting the
core meanings conveyed in the source language. Translating the term to “Encumbrance Right” while
elaborating the term and contrasting it with ‘mortgage,’ like what Tesalonika (2001) did, might be a
better solution than translating it directly into ‘mortgage’ or ‘land mortgage.’
References
Goddard, Cliff. 2008. Cross-Linguistic Semantics. Amsterdam: John Benjamins BV.
Goddard, Cliff. 2009. Semantic Analysis A Practical Introduction. 2nd ed. Oxford: Oxford University
Press.
Halim, Evand. 2006. Some Issues of Terminologies and Non-Equivalence in Legal Translation. In:
UNIKA Atma Jaya, Third Conference of English Studies. Jakarta, Indonesia 29-30 November
2006. Jakarta: PKBB Unika Atma Jaya.
Harpum, Charles, Stuart Bridge, and Martin Dixon, ed. 2008. Megarry & Wade: The Law of Real
Property. London: Sweet & Maxwell.
Hutagalung, Arie S. 2008. The Practice of Encumbrance and the Performance of Execution Over Hak
Tanggungan in Indonesia. In: ASLI (Asian Law Institute), 5th Annual Asian Law Institute
Conference. Singapore, 22-23 May 2008. Singapore: National University of Singapore.
Hutagalung, Arie S., Suparjo Sujadi, Rahayu Nurwidari, Hendriani Parwitasari, and Marliesa
Qadariani. 2005. Asas-asas Hukum Agraria, bahan bacaan pelengkap mata kuliah hukum
agraria. Depok: Fakultas Hukum Universitas Indonesia Press.
International Business Publishing, ed., 2006. Indonesia Business Law Handbook. Washington DC:
Global Investment Center.
Saeed, John L. 2011. Semantics. 2nd ed. Wiley & Blackwell
Sjahdeni, Remy. 1999. Hak Tanggungan Asas-Asas, Ketentuan-Ketentuan Pokok, dan Masalah yang
Dihadapi Oleh Perbankan (Suatu Kjian Mengenai Undang-Undang Hak Tanggungan).
Jakarta: IKAPI.
Sriro, Andrew I. 2006. SRIRO’s Desk Reference of Indonesian Law 2006. Jakarta: Equinox
Publishing.
Tesalonika, Iming M. 2001. Indonesian Security Interests. Tangerang: Pusat Studi Hukum Bisnis
Universitas Pelita Harapan.