Vol. 5, No. 5, May 2024
E-ISSN: 2723-6692
P-ISSN: 2723-6595
http://jiss.publikasiindonesia.id/
Jurnal Indonesia Sosial Sains, Vol. 5, No. 5, May 2024 1019
The Importance of The Form of Notarial Deed in The Shari'ah
Banking Deed for Legal Protection for Customers (Muhil) Who
Are Just in Indonesia
Sri Subekti
Kantor Notaris & PPAT Dr. Sri Subekti Kota Semarang, Indonesia
Email: drsrisubekti65@gmail.com
Correspondence: drsrisubekti65@gmail.com
*
KEYWORDS
ABSTRACT
Notary Role; Sharia
Banking; Book
Agreements; Legal
Protection; Justice
The development of economic business in Indonesia today,
especially in the banking sector, is not only in the conventional field
system but has spread to the realm of shari'ah system economic
business. Indonesian citizens are predominantly Muslim, so it will
increasingly attract market share to take part in the shari'ah
economic business. The shari'ah banking system is a banking system
that has not long been going on in Indonesia, so it is an excellent
opportunity to give birth to various forms of problems in practice
that then harm the customers as the primary consumers of shari'ah
banks. The presence of a shari'ah notary is still needed in Indonesia
because what is needed is the format of the Standard Agreement
deed with its provisions focusing on the shari'ah economy so as to
ensure legal certainty and public security in shari'ah transactions.
This research uses a normative juridical approach, which will
strengthen the theory of legal certainty, legal protection, expediency,
and justice. Therefore, the conclusion obtained by the need for a
shari'ah notary is significant.
Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)
1. Introduction
Indonesia is a state of law based on Pancasila and the 1945 Constitution of the Republic of
Indonesia. Everyone needs to get legal protection, legal certainty, guarantees, and recognition; this is
contained in Article 28D, paragraph 1 of the 1945 Constitution. Law enforcement is aimed at
improving order and legal certainty in society; according to Gustav Radbruch's theory, law
enforcement is divided into 3 types, namely justice, certainty, and expediency. The theory presented
solely provides protection of law, order, and the welfare of the people. Law enforcement is also
needed in the banking world, both conventional banks and shari'ah banks. Along with the
development of the times, shari'ah banking in Indonesia continues to experience rapid development
from year to year. Starting from the banking sector in 1991 with the establishment of Bank Muamalat,
which was followed by the emergence of financial institutions, the shari'ah economy has become a
trending thing in the country that spreads to various other business aspects such as aspiration, pawns,
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property, housing, hospitality, multi finance, cooperatives to Multi-Level Marketing (MLM) shari'ah
Sdan many others. From time to time, the shari'ah business will continue to grow, especially the
majority of Indonesian Muslims, so that the concept of the shari'ah economy will quickly adapt and
be readily accepted. Judging from the growth of the Islamic economy, Indonesia is the best in the
world, bringing growth that reaches 39% every year, while conventional economic growth is only
19%.
Banks are a core part of the financial system in every country and play an essential role in
supporting the movement of business or the economy. Its function, among others, is to act as an
intermediary between parties who have excess funds and parties who lack and need funds, serve
financing needs, and launch payment system mechanisms for all sectors of the community's economy.
From these conditions, banks are institutions that rely on public trust. The Bank continues to involve
the government to protect the public from irresponsible actions of bank employees and damage to
public trust (Ais, 2020).
Along with the development of banks in Indonesia, both conventional banks and shari'ah banks
do not guarantee that all banking businesses are run soundly. In reality, on the ground, business
actors/banks often ignore consumer rights and take advantage of consumer weaknesses without
having to get legal sanctions (Adjie & Hafidh, 2017). The weak position of customers as consumers is
caused by a lack of legal understanding owned by the community, existing legal regulations not being
able to provide a sense of security, and inadequate direct protection of the interests and rights of
customers. So, there needs to be legal protection for customers in the banking world as part of law
enforcement.
Legal protection is needed not only for conventional bank customers but also for customers in
shari'ah banks are also included; in shari'ah banking is a banking system that has not long been in the
State of Indonesia, so problems often arise in banking practices and can then harm the customer as
the main consumer. Sharia bank institutions are the same as conventional banking institutions, where
banks depend on the public's trust. Without the public's trust, the bank cannot carry out its business
activities properly. To provide public trust in the bank, it is necessary to provide legal protection for
the benefit of the public from the bank concerned.
Sharia banking practices in Indonesia show that the implementation of guarantee institutions
has not been based on Sharia principles. On the other hand, Shari'ah banking is proud because
creating the Shari'ah banking system can eliminate and prohibit non-productive, haram, dangerous,
bad, and speculative activities. The notary field is among the legal instruments that are still
considered inadequate at this time because it is based on the conventional business contract
paradigm.
Notaries provide legal services and consultations to people in need, as stated in Article 1
paragraph (1) of Law Number 2 of 2014 Amendments to Law Number 30 of 2004 concerning Notary
Positions, which states that Notaries are general officials who are authorized to make authentic deeds
regarding all deeds of agreements and determinations required by general regulations or by those
interested are desired to be stated in an authentic deed. Notaries occupy a very important position in
shari'ah banking today because they make deeds and contracts for shari'ah banking products and
binding guarantees. The practice of business agreements in the banking world today certainly
requires a notary who can understand the concepts of shari'ah contracts and their application in
Islamic banking practices in a format that is true to the concept of the standard sharia agreement deed
model. So far, what happens in Islamic banking practice is that there are still many conventional
Notary deed format models used for Islamic banks. Hence, the contents are not in accordance with
the spirit of the Islamic bank itself. This is the author's concern and concern to research, and it is
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urgently needed in Islamic banking practice to pay attention to using a deed format that really
contains and reflects the standard format of Sharia deeds (Setyowati, 2016).
A bank is a financial institution that utilizes notary law in every business agreement, including
fiduciary guarantees and liability. Generally, larger conventional banks involve Notaries in making
deeds of agreement or engagement compared to Islamic banks. However, shari'ah banks, as a sub-
system of the national banking system, are specifically regulated in Law Number 21 of 2008
concerning Sharia Banking, which states that every business activity related to the Deed of Deed of
Financing can use notary services. The agreement should note and emphasize that there are
principles and principles of Shari'ah economic law. In other words, all recording business agreements,
as stated in the notarial deed, must also refer to the norms of shari'ah economic law (Gaol, 2014).
The existence of a Notary in business contracts, including shari'ah business, is very important
considering that its main task is to make authentic deeds needed as evidence of legal events. As a
general official who makes authentic deeds, Notaries must have a good personality, work
independently, honestly, and fairly, and be full of responsibility. In addition, notaries are required to
have proficiency or mastery in the field of law in which they are competent. In addition to being
capable, Notaries must provide legal counseling to their clients to achieve high legal awareness. Given
the existence and duties of Notaries who are strategic and full of challenges, it should be along with
the development of the shari'ah business at least based on several reasons: (Ridhaan et al., 2022)
a. All through the hone in shari'ah budgetary educate, particularly banks, there are still numerous
shari'ah trade contracts that damage the arrangements of shari'ah rules, counting since the
Public accountant who handles it as it were capacities to legalize the contract does not
coordinate the substance of the contract since of its restrictions;
b. Legal officials who are able of defining contracts or Sharia commerce contacts are required to
realize a adjust of capacity between different legitimate callings, which in turn will influence
the quality of Indonesian law authorization..
The term Sharia Notary is still unfamiliar to the public. However, because of the development
of the era of deeds regarding the requirements of shari'ah by the community, a notary in shari'ah is
needed, which will later back up Notaries who do not understand shari'ah contracts that are often
used in shari'ah banking because in fiqh discourse a rule is known that changes in law are in harmony
with changes in place and era or period (Arliman S, 2016; Ningsih & Chalim, 2017). In the past, shari'ah
notaries were not given much attention. However, along with the times and the number of cases
regarding agreements in shari'ah banking, the presence of a shari'ah notary is highly anticipated.
If regulations governing shari'ah notaries are realized, problems regarding the competence of
notaries of shari'ah financial institutions will be resolved. It is hoped that a shari'ah notary regulation
can minimize the phenomenon of shari'ah agreement deeds that are not shari'ah (conventional) due
to the Notary's lack of understanding of shari'ah principles.
2. Materials and Methods
The research method used in this writing is a type of Normative Juridical research, with the
intention that the legal research used prioritizes the literature approach. The approach used also
seeks to examine the rules of law that are currently in force in the community and their relation to
the practice of their application in the field. It aims to study and test the legal aspects and find the law
in reality. The data analysis used in this study was carried out in an analytical descriptive manner,
that is, it described applicable and systematic legislation and then carried out a problem-solving
analysis.
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3. Result and Discussion
The Role of Notaries in Banking in Indonesia
A notary in Indonesia is an institution appointed by a competent authority that aims to provide
essential services to the general public and obtain an honorarium from the general public. A Notary
Public has a legal basis established on January 26, 1860, with the issuance of Notary regulations, or
this provision can be said to be a copy of the notary in force in the Netherlands. Notary office
regulations consist of 66 articles. Notary position regulations are still valid until the promulgation of
Law No. 2 of 2014, which amended Law No. 30 of 2004 concerning Notary Positions (UUJN) (Soleh,
2022).
The State of Indonesia deliberately created the presence of Notary institutions as an
implementation of the State to provide services to the community, especially in making authentic
deeds recognized by the State. As written in Article 1868 of the Civil Code, "an authentic deed is a
deed which in the form prescribed by law, is made by and or before a public officer authorized for it,
at the place where the deed is made". Notary is a general official who is authorized to make authentic
deeds and other authorities as referred to in Law No. 2 of 2014 Amendments to Law No. 30 of 2004
concerning Notary Positions. To carry out the mandate conveyed in Article 4 of the UUJN confirms
that before carrying out his office, the Notary Public must take an oath or promise according to his
religion in the presence of the Minister or appointed official. The deed made by a Notary Public is an
authentic deed which, as written evidence, can be seen in Article 15 Paragraph 1 of the UUJN. A Notary
Deed has Perfect legal force, and if a transaction is not made by a Notary Deed, which is only made
under sufficient seal, then the transaction only has legal force if the parties who make and sign into
an agreement acknowledge it.
Notaries have essential characteristics, including:
1. The position of Notary Public, which has been sworn based on the applicable legal rules, is
intended to help and serve the public who need authentic written evidence concerning
circumstances, events, and other legal acts based on UUJN.
2. The authority of a Notary office is stated in Article 15, paragraphs 1, 2, and 3 UUJN
3. Notaries are appointed and dismissed by the government. This does not mean that They are
subordinated to the government. Thus, when carrying out the notary office, it is independent and
impartial to anyone, and the duties of the notary office cannot be interfered with by the party
who appointed it or by other parties.
4. Notaries do not receive salaries or pensions from the government. They only receive
honorariums from the public who have served them.
5. Notaries have a responsibility to have to serve the public. The public can sue the Notary Public
civilly, and the cost of compensation and interest.
6. Notaries are domiciled in only one area between cities or districts and have the authority of the
entire provincial office area from their seat. They have only one office and may not open branches
or representatives.
Notaries and deeds are inseparable part because the Notary's position becomes authentic due to
the Notary's position as a public official based on UUJN. Juridically and formally, the types of
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agreements are divided into 2 types, which are used in banking that banks use in releasing their
credit, namely:
1. Agreement or underhand deed (deed under hand) and,
2. Agreement or binding before a Notary Public (notary) or authentic deed.
Differences in the agreement of the Deed underhand and the Notarial Deed.
Table 1 Differences in the agreement of the Deed underhand and the Notarial Deed
Information
Deed Under Hand
Notarial Deed
Understanding
The parties agree without the
intervention of a general official, and the
law does not specify its format.
An authentic Deed, based on Article 1868 of
the Civil Code, is a deed made by a public
employee who has the power to make an
authentic deed.
Format/shape
The format is not expressly regulated in
law, without intermediaries, and the
manufacture is not carried out in the
presence of authorized public officials.
The organize within the bona fide deed is in
agreement with the laws and controls
indicated in Article 38 of the UUJN, and the
making of the deed is carried out within the
nearness of an authorized official (common
representative) and at the put where the deed
is made.
Evidentiary
Value
• The control of confirmation is
recognized as long as the parties
concur to the concurred
understanding and don't deny the
understanding.
• On the off chance that either party
does not concede it, the verification
is cleared out to the party denying
the deed, and the judgment of
dissent of the prove is cleared out to
the judge.
The deed made has idealize confirmation. The
Legal official Deed is prove, so the deed must
be seen because it is; it does not ought to be
evaluated or interpreted differently than what
is composed within the deed.
A deed or underhand credit agreement is an agreement by a bank to provide credit to its
customers made between creditors and debtors without a notary. A credit agreement made by a
Notary (authentic deed is an agreement to provide credit by a bank to its customers, which is only
made before a notary. A credit application from the debtor precedes the process of the birth of a deed
of bank credit agreement. If the process of assessing the guarantee and eligibility of the debtor is
approved, then a determination of the amount of credit that the debtor can obtain is then carried out
the bank will issue a Notification of Credit Approval (SPPK). It can be found that the use of Notary
services is determined by banking policy, so not all credit agreements made by credit parties entirely
use notary services.
Development of Sharia Banking in Indonesia
The establishment of Islamic banks in Indonesia began with the workshop "Bank Interest and
Banking," held on August 18-20, 1990, in Cisarua, Bogor, West Java. The results of the workshop were
discussed in more depth at the IV National Conference of the Indonesian Ulema Council (MUI), which
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took place at the Sahid Jaya Hotel Jakarta, August 22-25, 1990. Based on the results of the
deliberations, the Indonesian Ulema Council (MUI) formed a Steering Committee Team, which was
tasked with preparing everything related to the establishment of Islamic banks in Indonesia (Amir
Sup, 2022, pp. 14–16). With the support of the government and the public on November 1, 1991, PT
Bank Muamalat Indonesia (BMI) was established and operated on May 1, 1992, this was strengthened
by the issuance of Law No. 7 of 1992 concerning Banking which was continued with PP No. 72 of 1992
concerning Banks Based on the Principle of Profit Sharing (Sup & Amir, 2022).
To improve the previous legislation, in 2008, a new regulation of shari'ah banking in Indonesia
was passed, namely Law No. 21 of 2008 concerning Sharia Banking. In the Law, it is explained that
shari'ah banking is everything that concerns shari'ah banks and shari'ah business units, including
institutions, business activities, and ways and processes of carrying out their business activities. The
enactment of this law is specifically intended to be a legal umbrella that regulates shari'ah banking
business activities and, in the law, is regulated regarding the issue of shari'ah compliance.
The rule of a shari'ah bank is that it carries out its trade exercises based on the standards of
shari'ah. The rule of shari'ah itself may be a rule of Islamic law in banking exercises based on fatwas
issued by teach that have the specialist to decide fatwas within the field of shari'ah. Trade exercises
carried out with shari'ah principles are all shapes of shari'ah bank trade exercises that don't contain
a few components, including:
1. Riba, is the practice of increasing income by non-halal means, such as in exchange transactions
of similar goods that are not the same quality, quantity, and delivery time or lending and
borrowing transactions with the condition that the customer is obliged to return the funds
received beyond the principal of the loan for reasons of passage of time. For example, the loan
sharks provided a debt of IDR 100 million, accompanied by 20% interest within 6 months.
2. Maisir is a transaction that is lucky because it depends on an uncertain condition. In practice,
maisir can be interpreted as "gambling" because there is no certainty over the results of
transactions made,
3. Gharar, a form of transaction whose object is known, not owned, unknown existence, and other
matters containing uncertainty,
4. Zalim, is a transaction practice that is unfair to one of the parties. In other words, transactions
that only benefit one party.
5. Haram is a transaction that is prohibited by Shari'ah both regarding its object and the parties who
make the transaction.
The principle of shari'ah is part of Islamic teachings related to economics; applying the principle
of shari'ah in a shari'ah bank will bring positive things to the national economic system. It will create
a fair and healthy investment, reducing the risk of loss that will only be suffered by one party. Because
of the essence of the principles of Shari'ah, in addition to sharing profits, also sharing risks to be
borne together. If the application of shari'ah principles in shari'ah banking occurs, justice and equity
will occur between banks and customers.
Article 1, number 13 of Law 21 of 2008 concerning Sharia Banking confirms that an akada
(agreement) is a written agreement. The content or substance of the written agreement contains
each party's rights and obligations by the principles of Shari'ah. The scope of Shari'ah banking
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examines contracts, including non-profit sharing contracts for banking services and profit-sharing
contracts.
1. Agreement Based on Non-Profit Sharing of Banking Services,
a. Akad Murabahah,
Based on Shari'ah banking legislation, an Akad Murabahah is a contract to finance an item by
affirming its purchase price to the buyer. The buyer pays the item a higher price as an agreed-
upon profit.
According to BI regulations, a Murabahah contract is an agreement to buy and sell goods in the
amount of the acquisition price plus the margin agreed by the parties, where the seller informs
the buyer in advance of the acquisition price.
b. Akad Salam
A financing agreement is in the form of a transaction of buying and selling goods by ordering
with certain conditions based on the principles of shari'ah, and payment is made in cash in full
in advance. The Sharia Banking Law explains that Akad Salam is an event of financing of an item
by ordering and paying prices made in advance with certain agreed conditions, and according
to BI regulations, Akad Salam is a transaction of buying and selling goods by ordering with
certain conditions and cash payment in full.
c. Akad Istishna
The financing agreement is in the form of a sale and purchase transaction of goods in the form
of an order for the manufacture of goods with specific criteria and requirements based on the
principles of shari'ah agreed with payment in accordance with the agreement. According to
Shari'ah banking laws and regulations, Akad Istishna is a contract for financing goods in the
form of ordering the manufacture of certain goods with specific criteria and requirements
agreed upon between the orderer or buyer and the seller or seller. BI regulations also explain
that Akad Istishna is an event of buying and selling goods in the form of ordering the
manufacture of goods with specific criteria and requirements agreed upon with payment
according to the agreement.
d. Akad Ijarah
A financing agreement in the form of a lease transaction on an item and or service between the
owner of the rental object and the tenant to get compensation for the leased object. Sharia
Banking legislation provides an explanation that Akad Ijarahis divided into two meanings,
namely, Akad Ijarah is an agreement to provide funds in order to transfer the right to use or
benefit from a good or service based on a lease transaction without being accompanied by a
transfer of ownership of the goods themselves. Furthermore, the second understanding of the
Akad Istishna Muntahiya Bittamlik is the agreement to provide funds in order to transfer the
right to use or benefit from a good or service based on a lease transaction with the option of
transferring ownership of goods. BI regulation explains the Akad Ijarah, which is a form of
agreement from a lease transaction on goods and/or services between the owner of the lease
object, including the ownership of the right of use or rental object with the tenant to get
compensation for the leased object.
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e. Akad Qardh
Financing agreement in the form of a loan and borrow transaction without compensation with
the obligation of the borrower to return the principal at once or in installments within the
agreed period. Sharia Banking Regulations describe Akad Qardh as a loan agreement to the
muhil with the provision that the muhil must return the funds he receives at the agreed time.
The definition of Akad Qardh in BI regulations is a loan and borrowing transaction without
compensation with the obligation of the borrower to return the principal in full or installments
within a certain period.
f. Akad Sharf
According to BI regulations, Akad Sharf is a deed made of exchange transactions between
different types of currencies (foreign currencies)).
2. Profit Sharing Agreement
a. Akad Wadi’ah
According to the Sharia Banking Law, Akad Wadi'ah is a custody agreement between the party
who owns the goods or money and the party who is entrusted and aims to maintain the safety,
security, and integrity of the goods or money. Based on Bank Indonesia (BI) regulations, a
Wadi'ah contract is a custody transaction of goods or funds from the owner to the depositor of
goods or funds with an obligation for the depositing party to return the funds at any time.
b. Akad Mudharabah
A financing or investment agreement from the fund owner (shohibul maal) to the fund manager
(mudharib) to carry out certain business activities in accordance with shari'ah, with the
distribution of business results between the two parties based on the estimated rewards to be
received by the fund owner from the fund manager (ratio), which is agreed beforehand. Based
on shari'ah banking regulations, Mudharabah is a cooperation agreement between the first
party as the owner of the fund and the second as the manager of the fund, which provides
business benefits based on the agreement. BI regulation explains that a Mudharabah contract
is the investment of funds from the fund owner to the fund manager to carry out business
activities between the two parties based on a previously agreed ratio.
c. Akad Musyarakah
Financing or investment agreements from two or more owners of funds and / or goods to run
certain businesses in line with the principles of shari'ah with the distribution of operating
results between the two parties based on a previously agreed ratio, while losses are divided
based on the proportion of their respective capital. According to Sharia Banking Law, Akad
Musyarakah is a cooperation agreement between two or more parties for a particular business.
Each party provides a portion of funds provided that profits will be divided according to the
agreement and losses according to their respective portions of funds.
d. Akad Hawalah
Is a debt transfer agreement from the party who owes the debt to another party who is obliged
to bear or pay. The definition, according to BI regulations, Akad Hawalah is a debt transfer
transaction from one party who owes money to another party who is obliged to bear or pay.
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e. Akad Kafalah
The guarantee agreement is given by one party to another party, where the guarantor (kafil) is
responsible for the repayment of the debt to which the recipient of the guarantee (makful) is
entitled. The definition, according to BI kafala regulations, is a guarantee transaction provided
by the insurer (kafila) to a third party or the insured to fulfill the obligations of the second party.
f. Akad Wakalah
In the laws and regulations, Akad Wakalah is a contract to grant power of attorney to power of
attorney to carry out a task on behalf of the authorizer.
The Role of Notaries in Making Authentic Deeds in Sharia Banking in Indonesia
In order for the agreement made by Muhil with Islamic banks to get a solid legal force, every
contract in Islamic banks should also start from now on by applying the sharia deed format system
that is made and signed in front of a notary. Because every business always needs a Notary as an
official who does authentic deeds in accordance with their duties regulated in the UUJN, this also
applies to businesses with Shari'ah. In addition, Notaries are also authorized to provide legal advice
to their clients in order to achieve their rights and obligations so that transactions agreed upon before
Notaries are not legally defective. Everything he writes and establishes is true, and Notaries are strong
document makers in a legal process (Adil, 2011; Wahid, 2022).
The Notary Deed as an authentic deed, which becomes written evidence contained in Article 15
Paragraph 1 of the UUJN, is a study of the phenomenon of shari'ah banking law where there is a
merger between Western civil law and Islamic civil law. This is inseparable from the increasing
existence and recognition of shari'ah law in Indonesia, with, in fact, the people of the Muslim
community prioritizing the principle of Ramallah specifically. These principles are categorized into 2
things. First, what is prohibited in muamalah activities is that the object of trade or business is not
halal and not trustful. Second, things that are forbidden to do include Riba; an object whose object of
commerce is not in the hands of the owner or does not know its existence so as to cause the debtor to
suffer losses (takhir); fraud due to defects in the goods traded (tadlis) (Harahap et al., 2020).
Notary is a position born from the law and officials who make authentic deeds, it is just that
Notaries who handle shari'ah business contracts must learn specifically about shari'ah business
contracts. To learn about the shari'ah contract is more efficient if done at least 1 week or more. So far,
there are still many Notaries who experience problems in making shari'ah deeds, so many Notaries
mix conventional provisions into shari'ah deeds. During handling contracts in the shari'ah business,
Notaries often experience obstacles in handling them, the obstacles faced include: (Akbar & Yazid,
2020; Jufri, 2020)
1. Regarding the writing of the second party, namely the borrowed customer, Sharia banks always
refer to him as a customer. In this case, the second party or the party who owes the debt should
be called a debtor (muhil). If it is called the customer, the bank will have a legal loophole that
harms the bank.
2. The client's second wife claims that she did not agree to sign a contract between the bank and
her husband.
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3. Notaries only accept a raw copy of the contract format from the shari'ah bank, this can cause
difficulties in describing the client's rights and obligations in the shari'ah contract.
4. The lack of understanding of notarial science about Shari'ah and Shari'ah business is an obstacle
in drafting a well-made contract.
5. Regarding the binding of financing, sometimes Notaries are still unfamiliar with their shari'ah
contracts. Until when facing banking customers, Shati'ah still used conventional customer
glasses and did not adjust rights and obligations shari'i.
From the obstacles faced in handling shari'ah banking deeds, Notaries have new challenges and
opportunities to realize shari'ah notaries, which include;
1. Many of the Notaries and stakeholders agreed to create a Sharia Notary, with the intention of
Notaries who understand and understand shari'ah business contracts and are more focused on
the fields of shari'ah so that stakeholders understand very well about the forms and
understanding of shari'ah business contracts. This is necessary so as not to arouse suspicion
about errors in determining the contract and also minimize errors and violations in the shari'ah
contract.
2. The need for a Sharia Notary in Indonesia because the majority of Indonesian citizens until now
are Muslims. So that it becomes an asset to work on the market for the realization of Sharia
Notaries in Indonesia.
3. The development of the Shari'ah business continues to increase year after year. With the
development of the Shari'ah business, it is not impossible to create a Shari'ah notary. A notary
is one form of creating an authentic deed.
Efforts in creating a Sharia Notary are not as easy as expected, there are several challenges
found in the field, including:
1. In terms of different opinions. Some Notaries, as well as some stakeholders, have the opinion
that Notaries currently have fulfilled the provisions of Shari'ah when participating in briefings
on deeds in the Shari'ah business. On the other hand, there are also some opinions that Notaries
currently have not fully implemented the compliance of Shari'ah because they take their legal
sources from Western law and are not based on the Quran, and are feared that it can result in
defects in a deed because of Notaries' lack of understanding of the provisions of Shari'ah.
2. Creating a Shari'ah notary needs to go through several processes, including the legislature, so
that it can take the form of a law regarding the Shari'ah notary deed.
3. The rapid development of Shari'ah banking in Indonesia is only a mask. It only attracts market
interest while, in practice, it has not purely applied the concept of Shari'ah. Because the
background of Shari'ah banking so far comes from conventional banking, there is still a lot of
customer interest in investing in conventional banks, considering that the provisions used in
Islamic banks are the same as those used in conventional banks.
4. Conclusion
The role of Notaries as public officials who are authorized to make authentic deeds in every
business agreement in Shari'ah banking is very important. Notaries are concerned not only with their
authority to make authentic deeds required in the cooperation but also with other agreements made
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between shari'ah banks and customers to better guarantee legal certainty for both parties. Notaries
are also required to equip themselves with adequate knowledge about the types of contracts and
financial products in shari'ah banking. Because shari'ah banks and conventional banks have different
characteristics, in a financing deed, shari'ah banks do not recognize the terms loan, bonus, debtor,
creditor, and interest. The terms debtor and creditor were changed to the recipient of financing
(Muhil) and lender (Bank). Notaries who already have a shari'ah certificate must understand the
provisions of shari'ah contained in the deed because they have attended training to understand
shari'ah economic law. At the same time, notaries who have not been shari'ah certified will experience
difficulties in facing shari'ah banking contracts, and if forced, the deed to be used later will also lead
to conventional and not shari'ah. The shari'ah agreement will be more authentic if it is stated in a
Notary deed prepared with a comprehensive understanding of Notary Shari'ah so that Notaries have
demands from the public to continue to increase the capacity of knowledge and sufficient
understanding related to contract agreements, shari'ah muamalah products.
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