Legal Certainty in Fulfilling the Obligation to Refuse to Be an Instrumental Witness and the Impact of Violations on Notaries

Abstract

Notaries are required to keep the contents of authentic deeds confidential, but the obligation of confidentiality or the right of recusal for instrumental witnesses who are also aware of the substance of the deed has not been regulated, thus creating a normative vacuum (leegstand van normen). This study aims to analyze the legal certainty regarding the right of recusal for instrumental witnesses in refusing to provide information on the contents of authentic deeds they know. This normative legal research uses a statutory, conceptual, and analytical approach, with secondary data in the form of primary, secondary, and tertiary legal materials, which are analyzed descriptively qualitatively using Gustav Radbruch's Legal Certainty Theory and Hans Kelsen's Legal Responsibility Theory. The results of the study indicate that the normative vacuum regarding the right of recusal for instrumental witnesses harms the value of legal certainty; Notaries have the potential to face indirect civil liab