In case of disagreement, the proof of the issues put forward by the parties depends on the evidences; which has been obtained and submitted legitimatelly; since the courts or arbitration boards decide by evaluating the evidence of the party with the burden of proof, and if it is suitable for clarifying the dispute.
Although it is certain how and through which evidence the proof shall be brought forward, the “evidential contract” is an exception to this statutory evidence system. This exemption is a result of “Freedom of Labor and Contract” titled Article 48 of the Constitution, principle of disposal and the principle of being brought by the parties, and shall be applied except for cases where the judge’s ex officio research principle exists.
With the evidential contract, the parties may decide to prove the events with evidence other than those stipulated within the law and even limit the proof of the events to only a few pieces of evidence. The parties may also decide which events shall be proved by which party. However, the subject of this article is not burden of proof contracts, but frequently asked questions within the framework of evidential contracts.
B. Can the evidential contracts contain a waiver?
Evidential contracts shall be divided into exclusive and non-exclusive evidential contracts.
In non-exclusive evidential contracts, the parties may decide that the events shall be proven by additional evidences along with the legal evidences, where the law ordered the proof of certain evidence for certain events. Therefore, there is no evidence that is disaggregated, so to say waived, in the non-exclusive evidential contracts.
On the other hand, with the exclusive evidential contracts, the detection of facts is limited to certain evidence. In this case, should the foreseen event occurs, the parties cannot submit any other evidence other than the evidence accepted within the evidential contract. In other words, evidence exceeding the limit of the evidential contract is, so to say, waived. In exclusive evidential contracts, it is important that the evidences are sorted specifically.
C. Can the evidential contract be verbally concluded?
Once the parties agree on what type of evidence shall prove the event(s), evidential contract shall concluded. Nevertheless, a valid evidential contract shall be executed in writing or writing to minutes before the court as per Article 193 of the Code of Civil Procedure No. 6100 (“CCP“).
Therefore, the evidential contract shall be constituted by (i) concluding a contract as a result of the foresights of the parties before the event occurs or (ii) by reaching an agreement before the court after the event has occured.
D. Can the wording of the evidential contract be kept general?
Parties may wish to reconcile the evidential contract in a general and comprehensive manner when they have a permanent relationship. However, it is important that the evidential contract points to a particular event(s). For instance, “From now on all disputes that may occur between the parties shall only be proved by the witnesses.” clause may not be considered valid.
For this reason, it shall be appropriate for the parties, who have agreed to conclude evidential contract, to draw up contracts which contain specific evidential clauses. As a matter of fact, in practice, the evidence contract is ensured within a standardized term in contracts to be concluded between the parties, rather than a separate contract.
E. Can the right of proof of one of the parties be limited by the evidential contract?
As stated above, the parties may freely determine what kinds of events shall be proved by which evidence. However, this does not mean that one of the parties of the contract may see itself as superior and only decide that the documents that it holds are eligible for proof. As a matter of fact, should the right of proof in one of the parties becomes impossible or difficult to present by the evidential contract, the contract may be considered invalid as per second paragraph of Article 193 of CCP.
With the invalidity of the evidential contracts restricting the right of proof of one of the parties, it is aimed to ensure “the principle of equality in the judgment”, “the principle of equality of arms” and the right to be heard equally. In this way, the party holding the power is prevented from taking away the right of proof of the weak party by signing an evidential contract.
Parties, who are free to decide what type of evidence shall prove certain events, may conclude the evidential contract within the legal boundaries in accordance with the rules of equity and honesty.
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