EVIDENTIAL CONTRACTS UNDER TURKISH LAW 9 September 2020
I. WHAT IS THE EVIDENTIAL CONTRACT?
Under Turkish civil procedure law, the statutory evidence system has been adopted in principle. In accordance with Article 189/3 of the Code of Civil Procedure ("CCP"), the matters that are required by law to be proven with certain evidence cannot be proven with other evidence. On the other hand, the law provided the parties with the freedom to conclude contracts in determining the means of evidences provided that they fulfill certain conditions.
The parties agree with the evidential contract on which evidence to prove the cases in dispute between them. In this respect, the evidential contract is a procedural contract concluded between the parties before or during the trial that a certain legal fact can be proved with certain evidence or with the kind of evidence agreed in addition to other evidence. [1] Due to this feature, the evidential contract is seen as an important tool in terms of overcoming the probable proof problems in today's era of technology and scientific developments.
The parties may conclude the evidential contract in writing or with their signed statements to be recorded in the minutes before the court. Within the scope of the contract, the parties may decide to prove the facts that are foreseen to be proved with certain evidences in the law with additional evidences or they may limit the proof of certain facts to certain evidences. In this way, it becomes possible to prove a legal transaction which may be proven by a witness with a deed or to prove a legal transaction that needs to be proved by a deed with a witness. However, with regard to the contract to be concluded in written form as a condition of validity, the parties cannot conclude an evidential contract to decide on any other evidence.
II. WHAT ARE THE VALIDITY CONDITIONS OF THE EVIDENTIAL CONTRACT?
- Determination in terms of Conflict
Evidential contract can only be concluded to prove a specific legal relationship. Accordingly, in order for the evidential contract to be valid; the dispute between the parties must be specific / determinable. Therefore, it cannot be considered valid for the parties to accept that any dispute between them will be proven by a witness.[2]
- Certainty in terms of Evidence
For the validity of an evidential contract, the legal relationship specified in the same should be clearly stated with which evidence to prove. Under an evidential contract concluded between the parties, the parties may agree to limit the proof of facts to certain evidence as well as to determine more than one piece of evidence. A contract stating that a certain fact can only be proved with certain evidence is defined as an exclusive evidential contract. In cases where the parties accept that a certain fact can be proved with the evidence that is accepted by the law, as well as with the evidence they have agreed with the contract, a non-exclusive evidence contract is in question.
- A Lawsuit Subject to the Principle of Preparation of Case by Parties
Evidential contract can only be mentioned in cases where the principle of preparation of case by parties applied. On the other hand, the evidential contract cannot be applied in cases where the principle of ex officio of the judge is applied and the judge can automatically refer to all the evidence.
- Prohibition of Contracting Against the Right of Proof
The limit of the parties' freedom to conclude an evidential contract was determined by the law and the possibility of a party's right to defense being completely abolished by an evidential contract was prevented. Accordingly; evidential contracts that make the use of one of the parties' right of proof impossible or extremely difficult shall be considered invalid (CCP Art.193/2). In the event that the right of proof of one of the parties is limited in an excessive degree and in a nature that would damage the essence of the right with the evidence agreement concluded between the parties, it is accepted that the judge should automatically observe it even if the parties do not object.
At the same time, the evidential contracts concluded as a separate contract or as a clause/condition of a contract, may also be subject to provision of standard terms specified in the Turkish Code of Obligations so long as they fall within the scope. In practice, it is seen that evidential contracts regulated as a general terms and conditions; contains provisions stating that the books and records belonging to one of the parties or the documents issued by a party can be relied upon as evidence and that the other party has already accepted the content of these documents and records. Evidential contracts including that kind of restrictions will be deemed invalid due to the regulation in article 193/2 of the CCP and will be subject to audit in terms of standard terms to the extent that suited to its nature.[3] In addition, the validity of evidential contracts shall be subject to; the principle of good faith within the framework of the Turkish Civil Code and to the provisions of the Law on Consumer Protection in case one of the parties is a consumer.
Consequently, although Turkish law grants the parties an authority to determine certain evidence as a means of proof, the said authority is not unlimited. In order for evidential contracts, which are frequently included in the contract provisions concluded between merchants, to be considered valid, it must be evaluated whether they meet the conditions briefly mentioned above.
