In the Turkish legal system, transactions exceeding a certain amount and value shall, in principle, be evidenced by deed (or conclusive evidence). To the contrary, the principle of circumstantial evidence is recognized with respect to legal acts and transactions that are below a certain value. In such cases where the circumstantial value is recognized, the parties may prove the legal actions or transactions through any kind of evidence. In some cases, the parties to an agreement may agree upon which evidence may be used for proof of fact. In this respect, the agreements concluded for determining the means of evidence for a legal transaction or fact are regarded as evidential contracts.
Evidential Contracts under CCP
The provisions regarding evidential contracts are set forth in Article 193 of Code of Civil Procedure No. 6100 ("CCP"). Pursuant to its first paragraph, the parties may agree to provide other types of evidence to prove the legal acts foreseen to be proven by certain evidence by law. Accordingly, the parties may also determine to provide certain evidence for the legal acts that are not obliged to be proven through certain evidence.
In this context, the parties may decide to prove a legal transaction by witness evidence even though its value exceeds the amount foreseen by law. In that case, the parties may resort to witness evidence surpassing the principle of evidence by deed, and witness statements are taken into account for the proof of the legal transaction which is, under normal circumstances, subject to the principle of evidence by deed (or other conclusive evidences). The judge freely evaluates the witness evidence within his/her judicial discretion. On the other hand, the parties may agree to provide a deed as a proof for a certain legal act which may be proven by witness evidence by law. However, as per the applicable law, the contracts to be issued in written form in order to be valid shall be evidenced by no other means except through deed. Within this scope, the parties shall not decide on any other evidence by the evidential contract with respect to a legal transaction, if the written form is required as a condition of validity of the subject transaction1.
An evidential contract may be drawn up for a certain legal relationship. In the evidential contract, the evidence to be provided to prove certain legal relationship shall be designated. For example, an evidential contract enabling the parties to prove all kinds of possible conflicts that may arise between them by witness evidence is considered invalid.2
Evidential contracts, according to their types, are classified as exclusive and non-exclusive. If the parties agree to provide certain evidence(s) for the legal acts that are not obliged to be proven by certain evidence by law, these contracts are regarded as exclusive evidential contracts. The reason these contracts are qualified as exclusive is that the evidence the parties may rely upon in court is restricted.3 If the evidential contract allows the parties to prove certain legal acts or transactions – in the case of a possible conflict - by some other sorts of agreed evidence, along with the evidence permissible by law, this contract is called non-exclusive. For instance, a contract designating to prove a legal transaction which is, by law, obliged to be proven by documentation and also through witness evidence, is qualified as a non-exclusive evidential contract.
Form of Evidential Contract
Pursuant to Article 193 of the CCP, an evidential contract shall be executed in written form. It may be concluded as a separate contract, as well as an article that regulates to provide certain evidence to prove the disputes arisen from a contract could be included in the said contract.
Moreover, evidential contracts may be drawn up before the court. In that instance, it is more likely seen as one party giving its consent to the other party's will for the court to hear a witness.
Validity of Evidential Contract
Since an evidential contract directly intervenes in the instruments of proof through law, its framework must be determined. In practice, in some cases, the dominant party forces the other party to conclude an evidential contract that restricts or removes the right to provide evidence. Taking note of this risk, the legislator considers that evidential contracts revoking, or seriously restricting the other party's right to provide evidence, shall be void as per Article 193/2. Thus, evidential contracts cannot be used in a manner that results in revoking one party's right of defense. With regard to review of an evidential contract's context, along with the right to defense measure under Article 193/2 of the CCP, so long as they fall within the scope, criteria such as standard terms regulated in the Turkish Code of Obligations, the principle of good faith appearing in Article 2 of Turkish Civil Code, unfair terms under the Law on the Protection of the Consumer if one party is a consumer, should be taken into account.
Under Turkish law, the parties may conclude a contract allowing them to provide agreed to evidence to prove legal acts or transactions related to the prospective dispute between them. By evidential contract, the parties decide which legal acts and/or transactions will be proven through which evidence. While the parties are free to form an evidential contract, the freedom of evidential contract must be monitored. Within this context, as per Article 193/2, evidential contracts revoking or seriously restricting the other party's right to provide evidence being void, the validity of contract is reviewed by the court according to the standard terms, unfair terms and good faith principle.
1. Kuru, Baki: İstinaf Sistemine Göre Yazılmış Medeni Usul Hukuku, Legal Yayınevi, 2016, p. 437.
2. Kuru, ibid, p.436.
3. Pekcanıtez, Hakan / Atalay, Oğuz / Özekes, Muhammet: Medeni Usul Hukuku, 14th Edition, Ankara 2013, p. 718.
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