Learn about the importance of a deed in law and how it plays a crucial role in property transactions. Consult with legal professionals for assistance.
A deed is a piece of writing that is made to be used as written evidence of an event and will be signed by the relevant parties.
In addition, a deed can also be interpreted as a letter made in such a way by or before an authorized official such as a prosecutor, judge, or notary, so that it can be strong enough evidence for both parties. In Article 1867 of the Civil Code, a deed is divided into two Official Deeds and Private Deeds.
Definition of Deed According to Experts
Meanwhile, according to experts, the definition of a deed is explained more clearly. Here is the definition of a deed according to experts:
1. Sudikno Mertokusumo
According to Sudikno Mertokusumo (2006), a deed is a signed letter containing an event that is the basis for a right or obligation, which is made from the start to be used as evidence.
2. Subekti
According to Subekti (2005), a deed is different from a letter. A deed is a writing that is deliberately made to be used as evidence of an event and signed.
Purpose of Making a Deed
If we talk about the purpose of making a deed, then it can be said that the purpose of making a deed is to be used as evidence of an event that has been signed by the person concerned. With this deed, a person can have valid and legally recognized evidence.
Function of the Deed
After knowing about the purpose of the deed, the next discussion is the function of the deed. The following are the functions of the deed, among others:
1. Formal Function
The first function of a deed is a formal function or formality causa. This formal function can be interpreted that to know the completeness and perfection of a legal act, a deed must be made. That means, a deed can be said to be a formal requirement for a legal act.
For example, a legal act that must be stated in the form of a deed as a formal requirement is Article 1610 of the Civil Code concerning contractual agreements, Article 1767 of the Civil Code concerning debt agreements with interest, and Article 1851 of the Civil Code concerning peace.
2. Evidence
The second function of a deed is as evidence. In this function, the deed can be used as evidence at a later date. In this way, the deed will be recognized as valid under law. According to Kohar, an authentic deed functions for the parties to the authentic deed as perfect evidence.
Then, the function of an authentic deed is as perfect evidence, this can be seen in Article 1870 of the Civil Code which reads:
“A deed to provide between the parties and their heirs or people who receive this right from them, a perfect proof of what is contained therein.”
Types of deeds
As stated in Article 1867 of the Civil Code, deeds are divided into two types, namely official deeds and private deeds. For more details, here is a complete explanation.
1. Official Deed (Authentic)
Official deeds or better known by many people as authentic deeds are deeds made officially by a public official. In addition, this type of deed must be made in accordance with statutory provisions.
As for public officials who can be involved in making deeds, they must be public officials who have the authority to make deeds. In this case, the public officials referred to are court bailiffs, notaries, civil registry office employees, and so on.
In fact, authentic deeds have strong evidentiary power, so that when the deed is brought to court as evidence, the judge cannot deny it and ask for additional evidence.
An official deed must meet the following requirements:
- The deed must be made when witnessed by a public official
- The deed must be made in accordance with the provisions of the law
- The public official who witnesses the making of the deed must be a public official who has the authority to make the deed.
Examples of official deeds are:
a. Notarial Deed
A notarial deed is an official document issued by a notary according to Civil Code Article 1870 and HIR Article 165 (Rbg 285) which has absolute and binding evidentiary force. A notarial deed can be said to be strong legal evidence, so that it is no longer necessary to prove its truth.
Based on Civil Code Article 186 and HIR 165, a notarial deed is the main written evidence or letter of proof, so that this document (deed) can be used as evidence in court proceedings which has a very important position.
Deeds that may be made by a notary include:
- Establishment of a Limited Liability Company (PT), changes and Minutes of the General Meeting of Shareholders.
- Establishment of the Foundation
- Establishment of other business entities
- Power to Sell
- Lease Agreement, Rental Agreement
- Buy and sell
- Inheritance Rights Information
- Will
- Establishment of CV including changes to Debt Acknowledgement, Credit Agreement and Granting of Mortgage Rights
- Cooperation Agreement, Work Contract
- Any form of agreement that does not exclude other officials.
In addition, notarial deeds also have several functions, including:
- Deed as a formal function which means that a legal act will be more complete if a deed is made. For example, a legal act must be stated in the form of a deed as a formal requirement, namely a legal act mentioned in article 1767 of the Civil Code concerning debt agreements.
- A deed as a means of proof carried out by the parties bound by an agreement that is intended to be used as evidence in the future. An authentic deed is a perfect means of proof for both parties and their heirs and all those who receive rights from it regarding what is contained in the deed. In fact, an authentic deed can be used as binding evidence. That means, the truth of the things written in the deed must be recognized by the judge, namely the deed is considered true as long as its truth is that no other party can prove otherwise.
Types of Notarial Deeds
Article 1 number 7 of the UUJN (Law on the Notary’s Office) states that the definition of a notarial deed is an authentic deed made by or before a notary that complies with the form and procedures stipulated in this law.
Based on the above understanding, it can be concluded that authentic deeds are divided into several types, namely:
- Deed of relaas acten
Deed of relaas acten is a deed containing a notarial description that is seen, witnessed, and made by the notary himself at the request of the parties, so that the actions or deeds of the parties are carried out and stated in the form of a notarial deed. The truth of this deed cannot be challenged except by accusing the deed of being fake. - Partij acten deed
Partij acten deed or deed of the parties, is a type of deed whose contents are about the information desired by the parties who made it or ordered the deed to be made and the truth of the contents of the deed can be challenged by the parties without accusing the deed of being falsified.
b. Deed of Establishment of Business
In a legal entity in the form of a firm, limited partnership/CV or limited liability company (PT), you need to make the agreement stated in the company’s deed of establishment made before a notary. What is meant by “making a deed” here is being present before the parties (subjects of the agreement), reading and signing the deed.
The deed of establishment is made by an authorized notary throughout the territory of the Republic of Indonesia to then obtain approval from the Minister of Law and Human Rights.
Business Establishment Deed: contains the company profile made by the business founder with a notary and accompanied by witnesses which is registered with the local District Court.
The Deed of Establishment states:
- Company founding date
- Company form and name
- Names of the founders
- Business address
- Purpose of establishing a business
- Large business capital
- Management and responsibilities of founding members of the business
- Fiscal year, etc.
The deed of establishment is stamped, then signed by the company founders, witnesses and notary. By the notary, the deed of establishment is registered with the local district court.
The purpose of creating a Deed of Establishment of a Business is:
- To avoid disputes in the future regarding the distribution of profits and losses.
- Provide clarity on the company’s ownership status to avoid unwanted incidents, such as disputes when shares are resold to your partners or other people, as well as the share purchase assessment process.
Underhand Deed
A private deed can be said to be a type of deed that is easier to make and does not require special conditions and complicated procedures compared to an official deed. Therefore, a private deed can be said to be a type of deed that is not too binding because it is only made by the people in dispute. In addition, usually this type of deed will be added with the signature of a witness, so that the deed becomes a little stronger.
Private deeds are regulated in Article 101 paragraph B of Law No. 5 of 1986 concerning state administrative courts. This article states in detail that “Private Deeds are letters made and signed by the parties concerned with the intention of being used as evidence of the legal events stated therein”.
However, a private deed can be weak if one party does not acknowledge the signature on the private deed or more precisely considers the signature to be fake.
A deed is called a private deed and must fulfill formal and material requirements.
The formal requirements for a private deed include:
- In written or written form
- Made by party (two or more parties) without assistance or in the presence of an authorized public official
- Signed by the parties
- Include the date and place of signing.
These are the formal requirements stipulated by Article 1874 of the Civil Code, Article 286 of the RBG, these formal requirements are cumulative, they cannot be less than that. Regarding the material requirements of a private deed, among others:
- The information contained in a private deed contains an agreement regarding the act (rechtshandeling) or law (rechts betrekking).
- Intentionally made as evidence
A private deed has the following characteristics:
- Its free form. A private deed whose format is not standard so that it is not the same as the output from an authorized official.
- The proof does not have to be in front of an authorized public official.
- It still has the power of proof as long as it is not denied by the maker.
- In the case that it must be proven, then the proof must also be equipped with witnesses and other evidence. Therefore, usually in a private deed. It is better to include 2 adult witnesses to strengthen the proof.
Private deeds have advantages and disadvantages, namely:
- Weakness: A private deed becomes weak if one party does not acknowledge the signature, or considers the signature to be fake.
- Advantages: A private deed has the advantage of being easier to make and does not require special conditions and complicated procedures. What is only needed are both parties to the dispute and a witness, so that the deed can be stronger.
The following are included in private deeds:
1. Legalization
Legalization is a deed that has not been signed under hand, given to a notary and before the notary which is then signed by the parties concerned, after the contents of the deed have been explained to them by the notary.
In legalization, the signature is done in the presence of the legalizer. In addition, the Notary is not responsible for the material/content of the document or deed, but the Notary is responsible for the signatures of the parties concerned and the date the document was signed.
2. Warning
A deed of record is a private deed that is registered to provide a definite date. The signed deed is then given to the notary to be registered and given a definite date.
In the deed of endorsement, it does not explain who signed it and whether the signatory understands the contents of the deed or more precisely only has certainty about the date and no certainty about the signature.
Differences between Official Deeds and Private Deeds
1. Characteristics
Characteristics of an authentic deed include:
- Form according to law
- Witnessed directly by public officials such as notaries, judges, clerks, and so on.
- Binding with strong evidence.
- The deed is very difficult to deny because it is witnessed by an official public official.
Characteristics of a private deed include:
- Free form according to the agreement of both parties.
- Made without having to be witnessed by a public official.
- It can be denied by the maker.
- It can be denied if the witness is not strong enough and one of the parties does not acknowledge the signature.
2. Power of Proof
- The evidentiary power of an official or authentic deed is very perfect and strong. The things written in the official deed will be considered as the truth and must be followed by the judge.
- The evidentiary power of a Private Deed will be weak if one party does not acknowledge the truth of the deed. Therefore, the power of an authentic deed is very dependent on the intention of both parties to acknowledge the deed at a later date.
Thus the discussion about the definition of a deed to its types. Hopefully all the discussions above are useful for Grameds. To support Grameds in increasing their insight, Gramedia always provides quality a