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LAW OF CIVIL PROCEDURE
295
The prohibition to provide evidence bywitness against documentation,
which is also referred to as the obligation to bring documentation against
documentation by scholars and the practice, is set forth under Article 201
of the CCP:
“Legal acts which may be raised against any allegation stemming
from the document and which may rule out or reduce the force of
the document cannot be proven by witness even if they correspond
to a value less than two thousand and five hundred Turkish Liras.”
As an amendment to Article 290 of the former Code, the statement
“brought forward as an exception” is replaced with “brought forward”.
The most fundamental difference between the obligation to provide
evidence by documentation and the prohibition to provide evidence by
witness against documentation is that in the former rule, the establishment
of evidence by documentation is mandatory and in the latter the
establishment of evidence by witness is prohibited.
The provisions of the CCP related to the exceptions to the evidence
rules are similar to those of the former Code. In Article 202 of CCP,
“Preliminary Evidence” is set forth and the exceptions are stipulated
under Article 203. Evidential Contract, which is another method used
to overcome the rule to provide evidence by documentation, is set
forth in detail under Article 193, before the rule to provide evidence by
documentation.
Article 202, which sets forth the “Preliminary Evidence”, reads as
follows:
“(1) In cases where there is an obligation to provide evidence by
documentation, witnesses may be heard if there is preliminary
evidence.
(2) Preliminary evidence is a record showing that the existence of
the alleged legal act is probable and given or sent by the person
against whom it was alleged, even if it is not sufficient to establish
complete proof.”
Article 203 of the Code which sets forth the circumstances under
which witness can be heard is as follows: