L'un des dérogations à l'exigence de la preuve par écrit: L'impossibilité morale

The rule of proof by deed (instrumentum) is established to prescribe that legal acts may be proven solely by means of a deed (an authenticated deed or a simple deed) constituting a particular category of written evidence. This rule, representing a significant limitation within the law of evidence, permits legal acts exceeding a specified amount or value to be established not only by a deed, but also by other forms of perfect evidence, such as an oath or a final judgment. Essentially, as this rule prohibits the proof of legal acts by imperfect evidence and, per se, by witness testimony, it is also referred to as the prohibition of proof by witnesses. Consequently, any party lacking possession of a deed is precluded from establishing or proving the legal acts in question. In French law, the rule of proof by deed, founded on a tradition extending for more than four hundred and fifty years as of today, has a long-established history. This rule has accompanied the centuries-long development of French law and has also undergone changes over time. Among these changes, the commencement of written evidence, and particularly the cases of impossibility, that constitute exceptions to this rule, hold particular significance. These cases of impossibility, shaped and refined through the jurisprudence of French courts, have been interpreted broadly. In this respect, personal reasons of the parties that prevent the execution of a deed have also been considered as cases of moral impossibility. Where a party lacking possession of a deed is confronted with a moral impediment rendering the execution of such a deed impossible, that party is permitted to establish the legal acts through other means of proof. Cases of moral impossibility essentially arise depending on the nature of the relationship between the parties and the influence of social customs upon that relationship. The French courts examine the circumstances of the party lacking a deed and decide whether such a moral impossibility exists in the case. Similarly, in Turkish law, which is one of the legal systems inspired by French law, the rule of proof by deed and its exceptions are also regulated. Although inspired by French law, multiple differences have been introduced. Among these differences, the cases of impossibility are particularly noteworthy. In Turkish law, such cases of impossibility are explicitly enumerated. In this situation, especially the moral impediments that make it impossible to execute a deed are limited. These cases of moral impossibility consist of the existence of certain kinship relations between the parties and the establishment of a custom whereby the relevant legal act is not reduced nor obliged to writing. Turkish courts examine only whether the situation of the party lacking a deed falls within one of the cases enumerated in the statute. In French law, it may be decided that the execution of a deed is impossible according to the nature of the relationship between the parties. For such a relationship to constitute a case of moral impossibility, it must include a certain degree of emotional closeness and mutual trust. In such circumstances, it is accepted that the execution of a deed would damage the relationship between the parties. In Turkish law, it may also be decided that the execution of a deed is impossible having regard to the nature of the relationship between the parties. However, the emotional closeness and trust inherent to that relationship are not examined. The relationship between the parties must be one of certain kinship relations. These kinship relations are categorized as close kinship relations. In such circumstances, it is accepted that the execution of a deed would, particularly, damage the relationship between close relatives. French courts determine the existence of moral impossibility by assessing whether the relationship between the parties involves emotional closeness and mutual trust. Where moral impossibility is established, proof by witness testimony is permitted. By contrast, Turkish courts determine the admissibility of witness testimony by reference to whether the parties are connected by one of the specific kinship relations enumerated in the statute. Kinship relations occupy an important place in the structure of Turkish society. Consequently, even in kinship relations not enumerated in the statute, a certain degree of emotional closeness and mutual trust may exist. Such emotional closeness and mutual trust may render the execution of a deed likely to damage the relationship between the parties. Nevertheless, since such a relationship does not fall within the category of close kinship relations enumerated in the statute, witness testimony cannot be admitted on this ground. In such circumstances, other cases of impossibility listed in the statute may be invoked instead. Turkish courts also examine, in the case of relatives not enumerated in the statute, whether the non-execution of a deed has become established as a custom. The rule of proof by deed may be set aside where a close kinship relation exists between the parties. Such a close kinship relation may arise between the parties to the legal act itself and in other contexts as well. A close kinship relation may exist between the parties to the legal act, but it may also arise in other ways. For this, persons who are not parties to the legal act must also be affected. This effect may arise in cases of representation, joinder of parties, or intervention in proceedings. In relationships of representation, there are, in principle, three actors: the principal, the representative, and the third party. Where the close kinship relation exists between the principal and the representative, it affects the authority of representation; where it exists between the principal and the third party, it affects the legal act performed. The general rule is that the requirement of proof by deed applies to the parties to the legal act. Persons who are not parties to the legal act cannot be expected to execute a deed in respect of that legal act. It is, therefore, particularly important to determine the parties between whom the close kinship relation exists. In joinder of parties, the rule of proof by deed may be set aside only where one of the close relatives is among the claimants and the other is among the defendants. In voluntary joinder of parties, a close kinship relation affects only the parties to that kinship relation. In such a case, it is not possible for one voluntary co-party to benefit from the kinship relation of another. In mandatory joinder of parties, it should likewise not be accepted that all the mandatory co-parties may benefit from the kinship relation of one among them. In the case of intervention in proceedings, the type of intervention is of significance. In principal intervention, a separate action is at issue. A close kinship relation between one of the claimants and one of the defendants in that action may allow proof by witness testimony. In accessory intervention, however, the accessory intervenor is subject to the evidentiary regime applicable to the party whom they support. In such a case, proof by witness testimony, if not granted to the parties to the action, cannot be granted to the accessory intervenor. In French law, the admissibility of testimonial evidence requires that moral impossibility be established. In contrast, in Turkish law, it is sufficient to determine the existence of a kinship relation. Kinship relations are considered matters of public order; therefore, Turkish courts may examine them ex officio. Notwithstanding the nature of the relationship between the parties or the existence of a close kinship relation, the parties may still execute a deed. In such a case, it is accepted that the moral impossibility between the parties has been removed. The deed executed between the parties may take the form of a signed blank document. Where the parties submit a forged deed to the court, such party is deemed to have renounced reliance on moral impossibility. Various legal acts that remove the moral impossibility between the parties are also addressed. These legal acts include suretyship, simulated transactions, and transactions containing an element of fiduciary obligation. In both French law and Turkish law, it may likewise be determined that it is impossible to obtain written evidence, where social practices have become established as customary usage. Certain legal acts may, by custom, not be reduced to writing. In such circumstances, the parties are expected to act in conformity with the established usage, and it is accordingly accepted that there exists a moral impossibility in procuring written evidence. Where, having regard to the nature of the legal act and the circumstances of the parties, it is customary not to reduce the legal act to writing, the rule of proof by deed is dispensed with. In such a case, the custom must be in force in the place and at the time the legal act is concluded. This presupposes that the practice of not reducing such legal acts to writing is widespread, continuous, and observed with a belief in its obligatory character. Under French law, the admissibility of witness testimony generally requires proof of moral impossibility. Since 1 October 2016, however, witness testimony has also been admissible where an established custom exists. In this respect, French law has acquired a similar character to Turkish law, in which it suffices to prove that the legal act is customarily not reduced to writing, without the need to establish moral impossibility in addition. Moreover, the custom must be pleaded by the parties, who bear the burden of proving its existence. Neither the French courts nor the Turkish courts will ascertain the existence of such a custom ex officio. Certain categories of legal relationships are recognized as being subject to the custom of not reducing legal acts to writing. Examples include commercial relationships, as well as contracts of employment, contracts of carriage, engagement gifts, and transactions between villagers. Notwithstanding the existence of such a custom, the parties may nevertheless draw up a deed. In such circumstances, it is accepted that the moral impossibility between the parties has been removed, or, more precisely, that the custom will not apply to their relationship. A custom arising from the will of society may thus be set aside by the will of the parties.