Corresponding Author: Elita
Guspitawaty
E-mail: [email protected]
INTRODUCTION
Talking about a notary means talking about the
country. One of the tasks of the state entrusted to an agency or legal entity
is to a notary (Davidson, 2012). A notary is an extension of the government in a
country, especially the form of Indonesia, which has delegated one of its
duties to a notary to carry out one of the duties and functions of the state in
a particular field, namely the civil sector (Gusnia, 2018).
The task of the Notary assigned by the state to him is
related to the needs of the community who wish to obtain legal assistance where
the Notary, in carrying out his functions, must be neutral and balanced so that
the community's interests are protected (Syaifuddin, 2022). A notary is a noble profession given to someone
capable and qualified to accept the task (Mowoka, 2014).
The presence of a Notary is neutral, neutral in that
he is not affiliated with any government agency, not the executive, legislative
or judiciary. Still, he stands upright, neutral only to serve the needs of the
people who need legal assistance, especially in civil matters. So, the position
of Notary was born because, on the one hand, the community needs it; on the
other hand, the state is obliged to prepare its tools for the needs of that
community. This position of Notary only goes through socialization after some
time. Still, he is here to answer the community's needs in the civil field,
which must be related to written evidence with authentic conditions, events and
legal actions from a community (Taofik, 2021).
Through its laws and regulations, the state has
attributively assigned a Notary to assume the position of a public official
where the position is an honourable position given to him by the state. Therefore,
a Notary in his appointment is directly appointed by a minister, namely the
minister of law and Human Rights, who is then selected and covered by an
article in it known as the UUJN, namely the Notary Office Law. Article 2 UUJN
says that a Notary in carrying out his duties can carry out his duties freely
without any intervention or interference from any institution, Department, or
agency, both government and private agencies (Saifuddin, 2021).
Because none of the departments influences him, he
works freely, independently, and independently, aka neutral. Even though there
is state or government intervention in terms of appointment, in this case, it
is the Department of Law and human rights. Still, suppose a Notary has been
appointed and legalized. In that case, it works and decides its civil cases
independently, meaning it does not have to report to superiors or subordinates.
A Notary is not a civil servant who gets a salary from
the state, but a private person, which is why he has no moral burden in his
work to report to the government or the state. The civil work in question is
related to doing an authentic deed with the proper legal structure to be
accountable to its clients. UUJN, or PJ PPAT (Land Deed Making Officer), has
full authority in all matters relating to public law or what is commonly
referred to as private law (Winahyu, 2022). It is called that because he is only responsible for
the interests of his clients, interests in matters of deeds he made
authentically, regarding deeds, agreements and provisions required by law.
In addition, a Notary is also authorized to time and
place, meaning that in carrying out his duties, he must be following the time
and place, namely following the establishment of domicile and the position area
of the Notary official concerned by guaranteeing time for the clients listed in
the deed (Ramadhan &
Permadi, 2019). Even though a notary official has the freedom to make
decisions, he still must refer to a notarial statutory guideline so that in
legal relations, in terms of his statement must be authentic because it acts as
a means of proof for the parties who provide information and is poured into a
notarial deed so that it becomes original deed.
Based on the above background, the purpose of this
study is to find out and analyze the notary's responsibility to the parties in
the terms of the binding sale and purchase agreement (PPJB) based on legal
analysis. So, this study has significant benefits in clarifying the notary's
responsibilities in the binding sale and purchase agreement (PPJB). In
practice, notaries act as responsible parties to ensure that the agreement
meets applicable legal requirements and protects the interests of all parties
involved. By conducting a legal analysis of the notary's responsibilities in
PPJB, this research can help clarify the role of notaries and ensure that
notaries fulfill their responsibilities appropriately. In addition, this
research can also help the parties involved in the agreement to understand
their rights and obligations, as well as protect their interests in the sale
and purchase transaction
METHOD
The method used is
the Normative Juridical method, where the main material, which is the primary,
is legislation. In contrast, the nature of the research uses descriptive
analysis, where the exposure and purpose are to obtain a complete picture of
the legal situation (Suryadi, 2016). The legal approach uses the doctrinal law method whose
sources are primary legal materials, namely legislation, the secondary is
jurisprudence, and the tertiary is journals, websites, and social media.
RESULTS AND DISCUSSION
Legal
Position of Notary and Parties to the Sale and Purchase Agreement (PPJB).
There are two types of Notary deeds stipulated by
UUJN, which are located as authentic deeds according to the form and procedure;
a) a Deed drawn up by a notary (release deed) (Nurwulan, 2018), namely a deed drawn up by a notary is a deed drawn
up at the request of the parties so that the notary records or writes down
everything discussed by the party relating to legal actions or other actions
taken by the parties and outlined in a notarial deed (Pramono, 2015); b) Deed made before a Notary (deed partij), namely
a deed made before a Notary at the request of the parties, where the Notary is
obliged to hear statements or statements of the parties which are stated or
explained by the parties themselves before the Notary. A binding sale and
purchase agreement was made by a Notary in front of the parties regarding what
actions were carried out by the parties, which the parties signed and two
witnesses and witnessed by the Notary himself (Munandir & Luth,
2017).
So that after the contents of the agreement are
signed by both parties, the contract will automatically bind both parties and
make it a law for the parties. Article 1338 of the Civil Code states that all
agreements made legally apply as laws for those who make them; an agreement
cannot be withdrawn other than by agreement of both parties or for reasons
stated by law as sufficient for that. In that article, it is also noted that an
agreement must be carried out in good faith, meaning that at the time a legal
relationship comes into effect, the conditions for the commencement of a legal
relationship are fulfilled and when the rights and obligations of the parties
are exercised following what has been agreed upon and signed in the deed of a
binding sale and purchase agreement (Sinaga, 2020).
In addition to the involvement between the seller
and the buyer in different positions, the Notary must also be involved in the
process. The position of each party is; a. Notary Public; 1) Notary as a public
official who has the authority to make authentic deeds related to actions,
agreements and decisions desired by the parties as regulated in Article 15
paragraphs (1), (2) UUJN. 2) Notary states what is the will of the parties,
which of course, is not based on their own will but must still refer to the
corridors of existing legislation; 3) When signing the deed of sale and
purchase carried out by the parties, all problems with both must be resolved
first, such as payment of the price of the sale and purchase transaction has
not been paid off. It must be paid off first, and if there are still obstacles
to both, then there will be no signing of the deed of sale and purchase. b.
Seller; 1) that the provisions that become the object being traded are not
currently involved in a dispute is, not under confiscation, belong to the first
owner and cannot be transferred by the first owner, and are not under debt
guarantees; 2) Should provide valid identity data and information to the
Notary; 3) Must first carry out the obligations stipulated in the sale and
purchase agreement, for example, the right holder has died so there must be a
process of inheritance carried out by all heirs, where during the process the
management of the inheritance is up to the name of the heirs; 4) The seller
avoids actions that violate the binding sale and purchase agreement, such as
selling the object of the agreement to another party. c. The buyer's position
in the binding sale and purchase agreement is to carry out the obligations
listed in the binding sale and purchase agreement, such as making sales and
purchase payments which are paid in stages (Rosadi, 2020).
The
Responsibilities of the Parties to the Agreement in the Sale and Purchase
Binding Agreement Made Before a Notary
Several things are the responsibility of both
parties, which are regulated in the PPJB such as (Salim &
Pandamdari, 2019); a) The selling party; the seller, must fulfil all
the elements or conditions that are the responsibility of the seller,
including; 1) The term of the certificate is still the right to use the
building and the buyer wants to buy with a right of ownership; 2) The
certificate has not been split; 3) The right holder dies; 4) The certificate is
still in control of the bank; 5) Certificate with the status of land belonging
to the people. If the seller does not complete the above rights, the buyer will
not pay off the remaining payment and will only pay off if the seller has
completed the terms. b) Buyer Party; is responsible for paying off the rest of
the sale and purchase payments to the seller if the seller has completed the
requirements made in front of the PPAT. Both should be responsible for what has
been agreed by both parties, which has been stated in the PPJB. If one or both
parties, if one or both conditions are not met, then one or both have
defaulted, where both have been bound to a contract which has become the rules
outlined in the PPJB.
Some of the things that lead to defaults committed
by one of the buying and selling actors include (Hutabarat &
Slamet, 2015). 1) The seller in carrying out the arrangement,
which results in delays in carrying out AJB such as the inheritance process; 2)
The buyer postpones the payment of a price that has been previously agreed upon
and makes the payment past due; 3) The buyer does not pay the penalty for the
delay in making payment of the agreed price. Therefore, with a PPJB made by a
Notary, it must be clearly stated that the legal actions carried out by both
parties can be proven in the deed he made. So that the Notary, in this case,
should not also contain formulations that can cause disputes because they need
to be completed and clear; in other words, a legal action that has been carried
out by the parties to the deed is authentic evidence.
CONCLUSION
the
role of the Notary in a sale and purchase binding agreement is crucial as a
public official who has the authority to do authentic deeds that are in
accordance with agreed actions, agreements, and decisions of the parties. The
Notary's responsibility is to ensure that the sale and purchase agreement's terms
and conditions are met and that any obstacles to signing the agreement are
resolved beforehand. The parties involved in the sale and purchase agreement
must also fulfill their responsibilities by completing the agreed conditions
and terms. The Notary has criminal and legal responsibility for the deed made,
and they may be summoned to attend a trial in a district court. Despite this,
the Notary must adhere to the oath/pledge of office unless the law dictates
otherwise.
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