NEWSLETTER-2020-metin

263 CIVIL PROCEDURE LAW 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 con- tract. 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 evi- dence. 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 par- ty’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. Conclusion Under Turkish law, the parties are given the opportunity to con- clude a contract on the evidence with which the relevant facts can be proven in a dispute that may arise 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 moni- tored. 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.