Legal Principle of Authentication Power of Authentic Deed Becomes Private Deed Due to Age Limit for Notary Appearers

Abstract

Besides having to obey the Law on Notary Position and the Code of Ethics, a Notary must pay attention to certain principles, one of which is the Precautionary Principle. This Principle is an important factor in knowing the appearers attending the Notary Office. To avoid mistakes and errors in making the deeds, the Notary must be able to acknowledge the appearers. In addition, the Notary should read the deed in front of the parties, so that the parties signing and witnessing the birth of the deed are fully aware of every point stated by the deed and its legal consequences. Furthermore, other significant matter that the notary must also pay attention to is the age of the attending parties. Article 39 paragraph (1) of the Act on Office of Notary Public states that a person who appears before the Notary to make a deed should meet the requirements of the minimum age 18 (eighteen) years or married. (2) The appearers must be recognized by the Notary or introduced to him by 2 (two) knowing witnesses attaining the minimum age of 18 (eighteen) years or married, and is capable of taking legal actions or is introduced by other 2 (two) appearers. Article 40 states: Every deed read out by a notary is attended by at least 2 (two) witnesses, unless the statutory regulations stipulate otherwise. Witnesses as referred to in paragraph (1) shall meet the following requirements: a. attaining the minimum age of 18 (eighteen) years or married;  b. being capable of doing legal actions;  c. understanding the language used in the deed;  d. being able to affix signature and initials;  and e. mot having marriage relations in upper or lower straight line without any degree limitation and until the third degree with the Notary Public or parties.Referring to Article 39 of the Act on Office of Notary Public regarding the minimum age of appearers, philosophically is also related to the legal age limit. In fact, several laws and regulations in Indonesia show the differences between one another  in determining the adult age limit. The Civil Code considers that adults boundary is at the age of 21 (twenty one) years, Article 47 paragraph (1) of the Law on Marriage states 18 (eighteen) years, and Act on Office of Notary Public is at least 18 (eighteen) years old. It certainly affects the legal certainty of the adult age limit. If the appearer is still under 18 (eighteen) years of age, then the deed that will be made by the notary will become underhanded deed, while the position of the deed is weak and does not have legal certainty.

Keywords: Age limit, authentic deed, legal certainty, notary public, private deed

DOI: 10.7176/JLPG/105-08

Publication date: January 31^st 2021