Authentic Deeds and Private Documents in Indonesia: What Is the Difference

An authentic deed (akta otentik) is a deed made in the form set by law, by or before an authorised public official, for example a notary or a PPAT (land deed official). A private document (surat di bawah tangan) is made and signed by the parties themselves, without a public official. The most important difference lies in evidential force: the contents of an authentic deed are presumed true until proven otherwise, whereas the force of a private document depends on the signatory acknowledging their signature.

What an authentic deed is

Article 1868 of the KUHPerdata (Indonesian Civil Code) sets out three elements of an authentic deed:

• it is made in the form set by law;
• it is made by or before a public official; and
• that official is authorised at the place where the deed is made.

For notaries, the form of a deed and how it is made are governed by the Undang-Undang Jabatan Notaris (UUJN, the Notary Law), that is, UU 30/2004 as amended by UU 2/2014. Article 1(7) UUJN describes a notarial deed as an authentic deed made by or before a notary in the form and by the procedure set by that law. A deed made by a PPAT (Pejabat Pembuat Akta Tanah) on a legal act concerning land, such as a sale or a gift, is also an authentic deed.

In practice there are two kinds of notarial deed:

• An official's deed (relaas), made by the notary and setting out what the notary saw and witnessed, for example the minutes of a general meeting of shareholders.
• A parties' deed (partij), made before the notary and setting out the statements and intentions of the parties, for example a lease agreement or a deed of sale of shares.

A notarial deed has an opening, a body and a closing (Article 38 UUJN). The notary reads the deed to the appearing parties in the presence of at least two witnesses, and it is then signed at once by the parties, the witnesses and the notary (Article 16(1)(m) and Article 44 UUJN). The original deed, called the minuta, is kept by the notary as part of the notary's protocol (official records). The parties receive copies.

What a private document is

Under Article 1874 KUHPerdata, private writings are deeds signed privately, letters, registers and other writings made without the involvement of a public official. Examples are an agreement typed and signed by two parties, a receipt, or a written statement.

A private document is still valid as an agreement as long as it meets the conditions for a valid agreement in Article 1320 KUHPerdata: consent, capacity, a specific object and a lawful cause. The exception is a legal act that the law requires to be made in the form of an authentic deed.

The difference in evidential force between an authentic deed and a private document

This means that if the signature on a private agreement is denied, the party relying on it needs to produce other evidence, such as witnesses or a signature examination. With an authentic deed, the judge is bound by the contents of the deed until there is evidence to the contrary.

The limits also need to be understood. The notary guarantees the formal truth of the deed: who appeared, when, and what they stated. The notary does not guarantee the material truth of the parties' statements. The contents of an authentic deed can still be challenged, for example where there was duress, mistake or fraud (Article 1321 KUHPerdata).

When the law requires an authentic deed

For a number of legal acts, the form of an authentic deed is not a choice but a requirement:

• Sale, gift, exchange and division of jointly held rights to land are evidenced by a PPAT deed so that they can be registered (Article 37 PP 24/1997, the Government Regulation on land registration). See AJB requirements and process and gifting land to a child.
• Granting a hak tanggungan (mortgage over land) is done with an APHT (deed granting a mortgage) made by a PPAT, and an SKMHT (power of attorney to grant a mortgage) must be made as a notarial deed or a PPAT deed (Articles 10 and 15 UU 4/1996). See APHT and SKMHT.
• Establishing a PT (limited liability company) and amending its articles of association are done by notarial deed in Indonesian (UU 40/2007), except for a PT perorangan (sole-shareholder company). See requirements for establishing a PT.
• Establishing a yayasan (foundation) is done by notarial deed (Article 9 UU 16/2001).
• A jaminan fidusia (fiduciary security) is made by notarial deed in Indonesian (Article 5 UU 42/1999).
• A gift of property other than land is made by notarial deed (Article 1682 KUHPerdata).
• A will as a public deed is made before a notary (Article 938 KUHPerdata). See making a will before a notary.

Outside this list, the parties are free to choose the form. An authentic deed is often chosen for high-value or long-term transactions because its date and contents are harder to challenge. For an acknowledgement of debt, the notary can also issue a grosse akta, a copy headed "DEMI KEADILAN BERDASARKAN KETUHANAN YANG MAHA ESA" ("For justice based on belief in the One Almighty God") that has executory force (Article 1(11) UUJN).

Legalisation and waarmerking: private documents recorded by a notary

A notary is also authorised to handle private documents without turning them into authentic deeds (Article 15(2) UUJN):

• Legalisation (legalisasi): the parties sign the document before the notary. The notary certifies the signatures and fixes the date by registering the document in a special register.
• Waarmerking (registration): the document has already been signed, and is then registered in the notary's special register. Only the date of registration is certain.

Both remain private documents. Legalisation strengthens the evidence of who signed and when, but the notary does not draft the contents. A full explanation is in the article on legalisation, waarmerking and copy collationnée.

When a notarial deed loses its authentic character

A deed made by a notary can be downgraded to a private document. Article 1869 KUHPerdata gives the causes: the official was not authorised or not competent, or the deed is defective in form. The UUJN sets out the same points in detail:

• the deed was not read out to the parties in the presence of two witnesses and not signed at once, unless the parties asked for the deed not to be read out in accordance with Article 16(7) (Article 16(9) UUJN);
• the rules on the form of the deed, the requirements for the appearing parties, or the requirements for witnesses were breached (Article 41 UUJN).

For this reason, the appearing parties in principle attend before the notary in person, bring original identification, and follow the reading of the deed before signing it.

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