Understanding the Difference Between Legalization and Waarmerking of Private Documents
In Indonesian legal and notarial practice, the terms legalization and waarmerking are frequently used in connection with private documents (surat di bawah tangan). Although both procedures involve a notary, they differ significantly in terms of the procedure, certainty of date, and the scope of the notary’s responsibility.
These notarial authorities are governed by Law Number 30 of 2004 concerning the Office of Notary, as amended by Law Number 2 of 2014 (the “Notary Law”).
Legalization of Private Documents
Pursuant to Article 15 paragraph (2) letter a of the Notary Law, a notary is authorized to authenticate signatures and establish the certainty of the date of a private document by registering it in a special register.
Under the legalization procedure, the document is generally prepared by the parties themselves. The parties subsequently present the document to a notary and sign it in the presence of the notary. Following the execution of the document, the notary authenticates the signatures and confirms the date of execution, and thereafter records the document in the legalization register.
Accordingly, legalization involves three principal elements:
- the parties execute the document in the presence of the notary;
- the notary authenticates the signatures and establishes certainty as to the date of execution; and
- the document is recorded in a special register or legalization register.
The date on which the document is executed before the notary generally constitutes the date on which the legal act stipulated in the document takes place and serves as the basis upon which the parties’ respective rights and obligations arise.
In practice, the notary may also provide an explanation regarding the contents of the document. However, the notary’s responsibility in a legalization procedure is essentially limited to authenticating the signatures, establishing certainty as to the date, and recording the document in the legalization register. Legalization does not, in itself, convert a private document into an authentic deed (akta autentik).
What Is Waarmerking?
Unlike legalization, waarmerking is governed by Article 15 paragraph (2) letter b of the Notary Law, which authorizes a notary to record a private document by registering it in a special register.
In practice, this authority is commonly referred to as the registration of a private document, register, waarmerking, or waarmerk.
Under the waarmerking procedure, the document has already been completed and signed by the parties before it is presented to the notary. The document is subsequently submitted to the notary for registration in the Register of Private Documents.
Accordingly, unlike legalization, the parties do not execute the document in the presence of the notary. Therefore, the date on which the document was signed may differ from the date on which it is registered with the notary.
The parties’ rights and obligations generally arise from the underlying legal act and the execution of the document that occurred previously, rather than from the date on which the document is registered or waarmerking is performed by the notary.
The primary function of waarmerking is to provide a record by an independent third party, namely the notary, that a particular private document was registered on a certain date. Such registration may strengthen the evidentiary aspect concerning the existence of the document and minimize the possibility of a party denying that the document was registered.
However, because the document is not signed in the presence of the notary, waarmerking does not constitute the notary’s authentication of the parties’ signatures, nor does it provide certainty that the document was actually signed on the date stated therein.
Key Differences Between Legalization and Waarmerking
| Aspect | Legalization | Waarmerking |
|---|---|---|
| Legal Basis | Article 15 paragraph (2) letter a of the Notary Law | Article 15 paragraph (2) letter b of the Notary Law |
| Execution of Document | Signed in the presence of the notary | Signed before being presented to the notary |
| Signatures | Authenticated by the notary | Not authenticated by the notary |
| Certainty of Date | The notary establishes certainty as to the date of execution | The notary establishes certainty as to the date of registration, not the date of execution |
| Registration | Recorded in the legalization register | Recorded in the Register of Private Documents |
| Role of the Notary | Authenticates the signatures, confirms the date, and records the document | Principally limited to registering or recording the document |
| Date of Document and Registration | Generally corresponds to the date of execution before the notary | May differ because the document has already been signed before registration |
Conclusion
The fundamental distinction between legalization and waarmerking lies in whether the parties execute the document in the presence of the notary and the scope of the notary’s involvement.
In a legalization procedure, the parties sign the document in the presence of the notary, thereby enabling the notary to authenticate their signatures and establish certainty as to the date of execution. The document is subsequently recorded in the legalization register.
By contrast, under waarmerking, the document has already been signed before it is presented to the notary, and the notary’s role is principally limited to registering or recording the document. Accordingly, waarmerking should not be construed as authentication of the parties’ signatures or confirmation of the accuracy of the date of execution stated in the document.
Therefore, where the parties require greater certainty regarding the signatures and the date of execution of a private document, legalization provides stronger evidentiary assurance than waarmerking. Nevertheless, neither legalization nor waarmerking changes the legal status of a private document into an authentic deed (akta autentik).
Legal Basis
- Law Number 30 of 2004 concerning the Office of Notary; and
- Law Number 2 of 2014 concerning the Amendment to Law Number 30 of 2004 concerning the Office of Notary.
- Hukum Online
