Article
16 paragraph (1) point a of the Law on Notary Position (UUJN) mandates that
notaries act trustworthily, honestly, thoroughly, independently, impartially,
and safeguard the interests of the parties involved in legal acts; however, the
principle of freedom of contract in Article 1338 of the Indonesian Civil Code
is frequently utilized as the basis for incorporating disclaimer clauses to
shift responsibility for material truth. This practice potentially violates the
objective requirements of agreements as stipulated in Article 1320 in
conjunction with Article 1337 of the Civil Code if used to negate official
obligations, thereby impacting the evidentiary strength of authentic deeds as
provided in Article 1870 of the Civil Code.
This
research aims to analyze the application of the principle of prudence in the
inclusion of disclaimer clauses in authentic deeds, and to examine the limits
of notary legal liability in the event of legal disputes.
This
research is normative legal research employing statutory, conceptual, and case
approaches. Primary, secondary, and tertiary legal materials were qualitatively
analyzed to address the research problems.
The
findings reveal that the validity of disclaimer clauses is conditional.
Distinct from prior studies that examined the legal standing or implications of
exoneration clauses in general terms, this research establishes that the
prudence principle functions as a validity test parameter for disclaimer
clauses: such clauses are void by law when used to conceal verification
negligence or to facilitate deeds that should have been rejected pursuant to
Article 16 paragraph (1) point d of the UUJN, yet retain juridical relevance as
liability delimiters for notaries who demonstrably complied with prescribed
procedures. Across civil, criminal, and administrative regimes, disclaimer
clauses confer no absolute immunity; courts will disregard them upon proof of
professional negligence.
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