Authentic Instrument and Private Instrument – the Difference Under Indonesian Law

General

An authentic instrument (akta otentik) is a document created by or made before an Indonesian public official (notary public) and certified by the notary.

A private instrument (akta dibawah tangan) is a document created without a notary being present. A private instrument could be registered later on to a notary, nevertheless such registration would not constitutes the document change of status from private instrument into authentic instrument.

Indonesian law requires authentic instrument for certain contract or 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 authentic instrument or private instrument is given by law for evidentiary process in 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 instrumentas evidence, the court will  deemed the evidence as genuine and complete, and if the defendant refuses the evidence, therefore the burden of proof is on the defendantto provide sufficient corroborating proof for the refusal; and  

• If a plaintiff submits a private instrumentas evidence, the court still assumes the evidence as incomplete prior to acceptance from the defendant to such evidence. If the defendant refuses the evidence, therefore the burden of proof is on the plaintiff to provide sufficient corroborating proof for the evidence authenticity.

Download this article

TAJI & REKAN | Indonesian Law Firm - Indonesian Lawyers