Indonesian Law | Hukum Indonesia - Blog: August 2012

Friday, August 24, 2012

Authentic Instrument and Private Instrument – the Difference Under Indonesian Law

Document Indonesia - TAJI & REKAN
General

An authentic instrument (akta otentik) is a document created by or made before an Indonesian public official (includes notary public). Examples: marriage certificate, birth certificate, notary deed, etc.

A private instrument (akta dibawah tangan) is a document created privately without a public official or notary being present. A private instrument could be subsequently registered to a notary, nevertheless, such registration shall not constitute change of status from a private instrument into an authentic instrument.

Indonesian law requires authentic instrument or notary deed for certain document, for example:

·         Immovable property (land and building) sale and purchase agreement;
·         Mortgage deed;
·         Business formation deed;
·         Will;
·         Inheritance deed; and
·         Prenuptial agreement.

The Difference

The status of an authentic instrument or private instrument is given by law for evidentiary process in the court of law. Compared to a private instrument, an authentic instrument is deemed genuine and establishes complete evidence for the court.

Example:

  • If a plaintiff submits an authentic instrument as evidence, the court shall accept such document as genuine and complete. If the defendant denies the document, therefore the burden of proof is on the defendant's side to provide corroborating proofs for such denial.  
  • If a plaintiff submits a private instrument as evidence, the court may accept such document as long as the creator or signatory of the document does not deny it. If the creator or signatory of the document denies the document, therefore the burden of proof is on the plaintiff's side to provide corroborating proofs to back up the document authenticity.

by: tnrlawfirm