p–ISSN: 2723 - 6609 e-ISSN: 2745-5254

Vol. 5, No. 7 July 2024 http://jist.publikasiindonesia.id/

Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 7, July 2024 3157

Notary Liability on Contract Renegotiation in Business

Contracts

Ni Nengah Dwi Dharmayanthi

, Benny Djaja

, Maman Sudirman

Keywords: business

contract deed, notary

responsibilities, contract

renegotiation.

Covenants are essentially a form of the source of the engagement. The difference

between an agreement that originates from an agreement and an agreement that originates

from the law is the legal consequence of the binding legal relationship (Ngaini, 2024).

The legal consequences of the agreement that originate from the agreement are the goals

of the parties because the agreement is formed with the agreement of each party, but the

agreement arising from the existence of a law can be possible that the parties do not want

legal consequences to occur (Puspadewi, 2023). The agreement is binding on both parties

and is valid to the extent that it is intended by the parties or otherwise determined by

national law (Sari, 2017).

Notaries providing services to the community, are subject to the Office Regulations

legal basis for the status of property and obligations and rights of a person (Lestari &

Santoso, 2018).

The notary profession requires responsibility in regulating both the written and the

authenticity of the legal relationship of each party who will enter into a consensus

agreement (Haryana, 2016). The notary is placed in a position as a legal aid provider to

provide input on the legal certainty of each party from the agreed agreement. Not without

reason, this is based on the provisions of Article 16 paragraph (1) letter (e) of Law No. 2

of 2014 concerning Amendments to Law No. 30 of 2004 concerning the Notary Position.

In this article, it is explained that when a notary exercises his or her office, he is obliged

to provide services by the provisions of this law, unless there is a reason for refusal

interests of the state and society (Rachma, 2023). Considering the two foundations

mentioned above, it is the reason why notaries get the nobile officium predicate and are

required not to take sides or be neutral.

In carrying out their obligations, notaries are appointed and dismissed by the

government, in this case, the minister in charge of notary affairs as regulated by Article 2

of the Notary Position Law. Although administratively notaries are appointed and

dismissed by the government, notaries are subordinate to the institution that appoints

them, in this case, the government.

The obligation of a notary has a philosophical basis, namely as a maker of authentic

deeds and other deeds to provide legal certainty for legal acts carried out by legal subjects,

the form prescribed by law by or before the public official authorized for it in the place

where the deed is made." Article 1868 of the Civil Code (KUHPerdata) means that for a

deed to have the power of authentic evidence, there must be an authority from a Public

Official, in this case, a Notary, to make an authentic deed sourced from the law.

A notary as a public official is obliged to understand and comply with all applicable

laws and regulations. In carrying out his office, a Notary is not only required to have legal

expertise but must also be based on responsibility and appreciation of the nobility of his

dignity and the nobility of his office. The position of Notary is a position of trust, and as

a confidant, it is appropriate for a Notary to uphold the confidentiality of the Notary

a deed. This is in line with oath (promise) 2 which must be said by a Notary.

According to the applicable law, for violations of the confidentiality of the position

of a Notary, a Notary can be subject to sanctions in the form of warnings up to

disrespectful dismissal from his position as a Notary based on the provisions of the 2014

Constitution,3 and can also be subject to criminal sanctions as regulated and threatened

with punishment in the provisions of Article 322 paragraph (1) of the Criminal Code

(KHUP), stating that: "Whoever deliberately discloses secrets that he must keep because

of his position or livelihood, both current and past, is threatened with imprisonment for a

maximum of nine months or a fine of up to nine thousand rupiah."

Departing from this reality, and to provide legal protection for Notaries on the

Based on this, it raises the question that with the disclosure of the confidentiality of

the Notary position, the Notary should be obliged to maintain the confidentiality of the

position (Article 16 paragraph (1) letter f of the 2014 Constitution), that I will keep

confidential the contents of the deed and information obtained in the exercise of my

office, and that I will be able to be appointed to this position, either directly or indirectly,

under any name or pretext, never and will never give or promise anything to anyone." 3

Indonesia (b), Law on Amendments to Law No. 30 of 2004 concerning Notary Positions,

Law No. 2 of 2014, ps. 16 paragraph (11), basically states that Notaries who violate the

confidentiality provisions of the Notary office can be subject to sanctions in the form of

(a) written warnings; (b) temporary suspension; (c) honourable dismissal; and (d)

methodologies with the existence of a normative system that is closed, independent, and

not bound to the real life of society.8 On this basis, normative law research can also be

called doctrinal research which examines the implementation of norms and rules in

positive law.

As the material for the study and source of this study, secondary data is also used

which includes primary, secondary and tertiary legal materials. First, the primary legal

to Law Number 30 of 2004 concerning Notary Positions.

Notaries in exercising their authority are appointed by the state to make and ratify

a deed or agreement. Even notaries are not allowed to make deeds when there is no

request. The notary deed is mandatory to be written and readable and must meet the

2. The deed in question is made by or in front of a public official.

3. The deed in question is formed in the same place and faces the authorities.

A notary is a public official with the authority to make authentic deeds as long as

the authentic deeds are not given the authority to make them by other public officials. The

creation of authentic deeds is required by laws and regulations to accommodate justice,

order, certainty and legal protection for the party who makes it. This legal protection is

realized by ensuring the rights and obligations of each party present before the notary to

ensure that the rights and obligations of the parties are by and do not violate the law.

As a public official, notaries are legally obliged to submit and follow the rules

contained in the Notary Position Law. Notaries should act neutrally, fairly, honestly, and

2. Make a deed in the form of a deed minus and keep it as part of the notary protocol.

obtained in the preparation of the deeds by the promise or oath of office, unless

otherwise specified in this law.

7. Binding deeds that have been made in 1 month into a book that does not contain more

than 50 deeds, and if the number of deeds cannot be contained in one book, the deed

can be bound into more than one book, and record the number of deeds, month and

year of making deeds in the cover of each book.

9. Make a list of deeds related to wills according to the order of the time of making the

deed each month.

10. Sending a list of deeds and nil lists related to wills to the will centre list of departments

whose duties and responsibilities are in the field of notary within 5 days in the first

week of each subsequent month.

11. Record in the repertory the date of submission of the will list at the end of each month.

12. Have a stamp/stamp that contains the state emblem of the Republic of Indonesia and

in the space that surrounds it is written the name, position and place of the position

concerned.

13. Reading the deed in front of the witness with the attendance of at least 2 witnesses or

law to make authentic deeds or ratify deeds made before a notary, and in place, the deed

is made. Thus, the notary is responsible for the notary's duties in the form of making

deeds, legalizing deeds under hand and making gross deeds and the right of the notary to

issue deed derivatives and copies of deeds to the authorities. Nevertheless, the

responsibility of notaries in practice is broader than what is regulated by law. The notary

is also responsible as a legal advisor and (informally) can be asked for his statement as a

consultant in carrying out procedural obligations.

Thus, the authenticity of the deed is something that needs to be considered by

notaries in providing their services to the community. One of the links of the deed is the

renegotiation of business contracts. Renegotiation is a process of renegotiation. Which is

other to do something, from that event, then a relationship arises between the two called

an engagement.

In a business contract, there is a possibility of default or breach of promise. Default

is the non-fulfilment of achievements and/or negligence in carrying out obligations as

stipulated through an agreement made between the debtor and the creditor, so that default

includes doing something that is prohibited by the agreement, not complying with the

agreement, or being relinquished in doing the agreed thing (Al Kautsar & Apriani, 2022).

The Criminal Code mandates in Article 1243 that the party who commits a default is

required to reimburse compensation, costs and interest due to the non-fulfilment of an

Furthermore, default is associated with circumstances that due to negligence, the debtor

cannot fulfil the achievements that have been agreed upon in the agreement outside of the

existence of force majeure.

Default is different from a force majeure situation. Force majeure is a situation

where the debtor is unable to fulfil his achievements or obligations to the creditor after

the conclusion of the agreement, so that the debtor can not be blamed and is not obliged

to bear the risk and the debtor does not predict at the time of the agreement the

consequences of circumstances beyond the debtor's control, such as earthquakes,

tsunamis, and so on. The elements of a compelling state can be summarized as follows:

1. An unexpected opportunity.

related to the contract of work and mineral and coal mining. The renegotiation of the work

contract is due to criticism related to the work contract where financial losses for the state

are caused by the existence of the work contract, especially related to the amount of taxes

and royalties (contributions) that apply to investors. The viewpoint brought by investors

is that the renegotiation of a work contract as a purely civil contract has a voluntary nature

so it is based on the voluntariness of each party to agree to change the content of the work

contract through the process of renegotiation of the work contract. The government, on

the other hand, is of the view that the renegotiation of work contracts as a civil public

contract has a mandatory nature. This difference in practice can hinder notaries from

participating in contract renegotiation.

long as the deed is not also assigned or omitted to other officials or other persons

prescribed by law (Nurlaela, 2020).

The notary to carry out his responsibilities, referring to the law, in this case, are the

conditions for the validity of the agreement regulated by Article 1320 of the Civil Code,

as (1) made in the form prescribed by law, (2) made in the presence of an authorized

official, (3) a deed formed by or in the presence of a public official authorized for it and

in the place where the deed is made (Purnayasa, 2018). Moral responsibility for notaries

including honesty, thoroughness and neutrality of notaries in making contract deeds is

of ethics in providing their services, as a public official.

A notary deed is an authentic deed that is used as the strongest and most important

proof tool in each legal relationship of each party in a business contract. The presence of

an authentic deed brings legal certainty to the parties which can hopefully help avoid

disputes in the future. If a dispute occurs, an authentic deed can be used as the strongest

and most complete written proof tool in the process of resolving a dispute.

The notary's contribution to contract renegotiation is in the form of providing

facilities for each party, in this case, the neutrality of the notary who receives input from

each dispute faced by each party so that the notary plays the role of an advisor and legal

input for the disputing parties. The advice includes recommendations for alternative

The responsibility of the notary in ensuring all facts in the renegotiation of the

contract is bound by Article 16 of the Notary Position Law which requires the notary to

act honestly, independently, thoroughly, and impartially and to maintain the interests of

each related party in legal acts. The notary also must record every matter agreed upon in

the contract renegotiation process from the parties. In this case, the recording includes a

clause before the renegotiation is formed until the time the consensus occurs after the

contract renegotiation is carried out. As a public official, a notary has the responsibility

to provide legal briefings and input so that each party can avoid disputes in the future.

This is also mandated by Article 15 paragraph (2) letter e of the Notary Position Law,

which reads that notaries are authorized to provide legal counselling about the making of

terms of legal advice and legal counselling for each party to the dispute.

Al Kautsar, Thoriq, & Apriani, Rani. (2022). Wanprestasi Debitur dalam Perjanjian

Kredit Usaha Mikro Kecil dan Menengah (UMKM). Jurnal Pendidikan Dan

Konseling (JPDK), 4(5), 7936–7949.

Haryana, Haryana. (2016). Hukum Perjanjian (Dalam Perspektif Perjanjian Karya

Pengusahaan Pertambangan Batubara). Jurnal Komunikasi Hukum (JKH), 2(2).

Haryanto, Agus Dwi. (2023). Prinsip Kehati-hatian Notaris Dalam Membuat Akta Kuasa

Undang Hukum Perdata Dan Hukum Islam. Jurnal Repertorium, 4(2), 8.