e-book2013

NEWSLETTER 2013

296

“(1) Witness may be heard under the following circumstances:

a) For transactions between lineal consanguinity, siblings, spouses,

father- in-law, mother-in-law, daughter-in-law and son-in-law;

b) Legal transactions for which a document is not produced as a

matter of application of the customary law;

c) Legal transactions performed in circumstances under which

obtaining a document is impossible or very difficult, such as fire,

marine accident or earthquake;

d) Allegations of defect of intention and lesion in transactions;

e) Allegations of simulation brought by third parties against legal

transactions or documents; and

f) In circumstances under which there is strong evidence or

indications which strengthen the impression that the document is

lost because of an unexpected event or force majeure by the owner

or the officer or the public notary to whom the document was duly

entrusted.”

During the period in which HUMK was in force, attempts were made

to introduce some additional exceptions alongside the statutory exceptions

by court decisions; and attempts have also been made to overcome the

prohibition to provide evidence by witness against documentation in

the presence of certain circumstances. The High Court has handed

down decisions that bring exceptions to the rule to provide evidence by

documentation for labor and service contracts, the incompatible filling

out of a document against a contract and gambling debts. For example,

there is an important jurisprudence of the Turkish High Court that asserts

that the judge may decide to hear a witness in a case where it is alleged

that the document is void because of immorality and in the presence of an

event that is against the ordinary flow of life.

Conclusion and Summary

As explained above, the exceptions to the “Rule to Provide Evidence

by Documentation” are preliminary evidence, evidential contract, consent

to witness testimony and the circumstances under which witnesses can be

heard which are enumerated under the six titles in Article 203 of CCP.