ABSTRACT
Article 138 of the Turkish Code of Obligations Law number 60981 (“TCO”) regulates adaptation of the contract in accordance with changing circumstances. This provision, which constitutes an exception to the principle of pacta sunt servanda, was not regulated in the Abolished Code of Obligations Law number 8182 (“ACO”). In this article, the conditions and circumstances that lead to the application of the provision are examined in the light of doctrine and Court of Appeal decisions.
I. INTRODUCTION
In the face of changing conditions and in cases where certain conditions are met, a contract must be adapted as required by the rules of good faith. In this context, it is important to examine the effect of the provisions of laws and contracts on the concept of adaptation and the legal character of TCO 138. In addition, the conditions of the adaptation, under which conditions and when it should be claimed should also be analyzed. For this reason, in this article, the concept of adaptation is emphasized first and then the conditions of adaptation are explained in light of the relevant provisions and the decisions of the Supreme Court.
II. THE CONCEPT OF ADAPTATION
A. Pacta Sunt Servanda and Adaptation
The principle of freedom of contract is guaranteed in Article 48/I of the Constitution3. In this regard, Article 26 of the TCO has the provision that: “The parties may freely determine the content of a contract within the limits provided for in the law.” Accordingly, the parties are free to provide the balance between their acts by interpreting all the risks and conditions that are likely to occur. As a matter of fact, all legal relations inevitably contain risk. Maintaining the validity of a relationship established with the assumption that the parties evaluate the risks in relation to each legal relationship is a result of the principle pacta sunt servanda, which means commitment to the contract in any case.4 The Court of Appeal defines the principle of adherence to a contract as follows:
“The principle of adherence to the contract which is dominant in contract law has been accepted also in our law. According to this principle, the contract should be applied exactly as it was initially agreed. The conditions of the contract become subsequently difficult for the debtor and, even if the balance of acts has changed due to subsequent events, the debtor shall perform the same acts as in the contract5."
According to this principle, despite all the difficulties and obstacles that arise after the date of a contract, the acts of the contract shall be exactly performed by the debtor. Acts of the parties that are contrary to the principle of adherence to the contract is a breach of performance6.
However, strict adherence to this principle, which arises as a requirement of the rule of law and good faith and which requires discharging the debt, is in some exceptional cases contrary to contract justice, honesty and fairness. This may require the restriction of the pacta sunt servanda principle in order to restore and maintain balance between the parties. If there is a conflict between the principle of contract justice and adherence to the contract, this dispute must be resolved through the adaptation of the contract7. In this respect, the Court of Appeal, in most of its decisions, has stated that the main principle is adherence to the contract whereas adaptation lawsuits are exceptional8.
It should be mentioned briefly that academics divide adaptation in two: narrow adaptation and broad adaptation. Adaptation, in principle, amends the content of the contract. In other words, it changes the rights and obligations of the parties. Narrow adaptation is adaptation of the content of the contract, in other words, parties’ rights and obligations to the changes. Changes in the terms of the contract are also considered in the concept of narrow adaptation. Broad adaptation refers to interventions that include the termination of a contract without the consent of both parties9.
B. Provisions Regarding Adaptation
1. Provisions of the Law Relating to Adaptation
Adaptation of the contract was not explicitly regulated under the general provisions of the ACO. In this context, judges ruled on the adaptation of the contract by making use of other provisions10 and principles. These were based on the need for (i) the rule of good faith, (ii) considering it as a gap of contract, and (iii) as a gap in law11. The Court of Appeal stated in a decision that the basis of adaptation of the contract is the rule of good faith with these words:
“If the circumstances that affect the intent of the parties and cause them to make the contract then change significantly, dramatically and injustice, then the parties are no longer bound by that contract. Over against these changing conditions, Article 2 of TCC Law provides the opportunity of adaptation of the contract12.
The Court of Appeal stated in another decision that if there is an absence of a provision in a contract, as stated below, the contact should be filled in accordance with the rules of good faith by way of interpretation regarding the content of the contract and the parties’ intents13 with these words: “If the parties have not taken any measures and contract justice has been broken by the changing situations, there is a gap in the contract. This gap shall be filled in the content of the contract and in accordance with the rules of good faith by way of interpretation regarding the parties’ intents (Article 1 of the TCC). This method means the amendment of the contract by way of interpretation or adaptation to changing circumstances and conditions14."
With Article 138 of the TCO, adaptation of the contract is explicitly regulated in Turkish law with a general provision. The content of this Article is as follows:
“An extraordinary situation which is not foreseen by the parties at the time of the contract and which is not expected to be anticipated, arises from a reason not due to the debtor and changes the existing facts at the time against the debtor in such a way as to violate the rules of good faith, If the debtor has not yet fulfilled his/her obligations arising from the excessive difficulty of the performance, the debtor shall have the right to request from the judge the adaptation of the contract to the new conditions and to revoke the contract if this is not possible. In contracts of continuing obligations debtor shall terminate the contract.
This provision also applies to foreign currency debts.”
As well as these general provisions of adaptation, there are special provisions in law regarding adaptation. Some of these related provisions are set out below.
a. Adaptation In Case Of Bankruptcy And Insolvency
Generally, if one of the parties becomes insolvent and bankrupt, the other party may postpone its performance until the counterparty fulfills its performance in the contracts from which the mutual debt arises. If it is not performed within a reasonable time or at least the guarantee is not given, the contract can be terminated (Article 98 of the TCO).
Unless otherwise stated in the contract and in case of a bankruptcy of one of the general partners, the general partnership agreement can be terminated (Article 639/III of the TCO).
In the same way, because of the worsening financial situation of the principal debtor, the guarantor may demand from the principal debtor to be guaranteed or be rescued from the bail (Article 595/III of the TCO).
b. Adaptation In The Event That Significant Reasons Arise
In a construction contract, if the situations that are unforeseen or foreseen and ignored by the parties prevent or make extremely difficult to perform an act, the agreed price may be reduced or the contract may even be terminated (Article 480/II of the TCO).
In a construction contract, if the price was initially determined approximately and is exceeded excessively without the fault of the employer, the employer shall turn over the contract incompletely or after the work is completed (Article 480/II of the TCO).
In the doctrine, this issue is stated by Arat as “the Judge determines whether this resultant excess is excessive pursuant to the rule of good faith15."
c. Adaptation In The Event That The Subject of the Contract Becomes Impossible
Both general and special provisions that regulate impossibility should also be accepted as reasons for adaptation. If the debt becomes impossible with no fault of the debtor, it shall be over automatically (Article 136/I of the TCO).
In a construction contract, even if the completion of the work becomes impossible through circumstances caused by the employer, the contractor shall claim the expenses and value of the work (Article 485/I of the TCO). Similarly, in an ordinary company, if the company is unable to achieve its purpose, the company ends (Article 639 /I of the TCO).
d. Adaptation in the event that Justified Reasons Arise
The right to terminate for justified reasons may be caused by the law or it may, in certain cases, be that the parties have agreed on a contract. In any case, it is worth noting that the current valid cause that would require the right to terminate the contract has to have occurred. However, it should be noted that there is no general legal provision in Turkish law regarding the termination of a perpetual debt for justified reasons16.
In terms of this principle, which was developed in case law, the Court of Appeal may arrive at different decisions for different types of contracts. The legal basis of termination for justified reasons is based on Article 2 of the Turkish Civil Code number 472117 (“TCC”) by an opinion in doctrine. Another opinion interprets the right to terminate for justified reasons in order to prevent excessive limitation by considering a personal right, which shall not be waived under Article 23 of TCC.18 Also, it should be noted that termination for justified reasons has to be used as an ultima ratio. This is due to the process security and the principle of pacta sunt servanda. Lastly, termination for justified reasons is a relative mandatory rule. It is not possible to waive or limit the right to terminate for justified reasons. However, the parties can determine under which conditions termination for justified reasons can be used19.
A justified reason arises sometimes due to an act of nuisance of one of the parties (Article 295 of the TCO), and sometimes due to changes that take place in parties’ relations (Article 617 of the TCO). A judge shall decide whether a situation is justified or not.
2. The Legal Character of Article 138
Whether Article 138 of the TCO is a mandatory provision is somewhat controversial in doctrine. However, according to majority opinion, this provision is not related to public order and does not have a mandatory character20. Therefore, it is generally accepted that regulations of contract contrary to Article 138 of the TCO can be made and negative adaptation provisions can be established. According to minority opinion, the authors state that the will of the legislator tends toward setting a relative mandatory rule under legislating article 138 of the TCO based on the Law on Enforcement and Implementation in the Turkish Code of Obligations2122.
3. Provisions of a Contract Relating to Adaptation
In anticipation of a changing situation for the parties, according to the freedom of contract the parties may establish rules applicable to the contract in an open or implicit manner to prevent any changing circumstances. Establishing the provision of adaptation to the contract is intended to ensure that the parties act carefully and cautiously toward political, social and economic events. Accordingly, the adaptation provisions established in the contract can be positive provisions or negative provisions23.
Regarding positive adaptation provisions, the doctrine states that: “The rules stipulated by the parties in the contract that will be adapted to the changing circumstances in the event that certain situations are considered as positive adaptation rules.”24 The terms may be specified in terms of each risk, as well as by using general expressions such as “unforeseeable events”. Negative adaptation provisions are explicit and implied rules that state that the contract shall remain in full standing despite any changing circumstances. With such a provision of contract, one of the parties undertakes to fulfill its actions specifically even if the circumstances change in an extraordinary way25.
III. THE CONDITIONS OF IMPLEMENTATION OF ARTICLE 138 OF THE TCC
On the basis of Article 138 of the TCC, the legislator determined a set of conditions to which the adaptation of the contract to changing circumstances apply. The conditions stated in the wording of the provision are examined under two headings in doctrine: positive clauses and negative clauses.
A. Positive Clauses
1. An Extraordinary Change Between the Conditions Under Which the Contract Was Established and the Conditions During Performance
After the contract has been executed, the balance between the actions of the parties should be unbalanced to the extent that the debtor should not be expected to undertake the end results. “Any changes in the terms of the contract cause to result in adaptation of the contract. The amendment of the terms should have serious and severe consequences on the contracting parties.”26 Temporary difficulties are not considered as a change in this sense27.
“The change in the balance of actions must come from an extraordinary situation that is unpredictable and unforeseeable during the execution of the contract (such as war, economic crisis, devaluation, natural disasters, limitations and restriction on import and export).”28 There is also an opinion that there is no need for a change from an extraordinary situation. However, as will be explained below, in any case, the change must disrupt the balance between actions29.
“[W]hen the contract is executed, in the event that disruption of the balance between the mutual acts largely cannot be tolerated by one of the parties due to the extraordinary changes in circumstances, according to the data of the case, the judge may decide to increase the performance of the debtor for the benefit of the creditor or may decide to release from the obligation of performance of the debtor in full or in part for the benefit of the debtor30"
In the decisions before the regulation of Article 138 of the TCO, the Court of Appeal stipulated that any changes of circumstance leading to the adaptation of the contract should be a change such as war, disaster and economic devaluation such as force majeure.31 Even in some old decisions, it was stated that there was a need for force majeure for adaptation:
In order to be made adaptation, the balance between the acts has to come from a force majeure that is not caused by either of the two sides and which is not expected from both sides. The deceased of the plaintiffs should have known that there has been a high inflation in our country for many years and that the Turkish Lira is losing value against the currencies of foreign countries. Therefore, high inflation and other economic conditions do not constitute force majeure for the adaptation of the contract. (…) it should be approved that there are not adaptation conditions32.
In the doctrine, it is stated that force majeure is sufficient for adaptation. However, events that are not force majeure may cause adaptation. For this reason, changes that may cause adaptation are a wider concept including force majeure. “According to the regulation in the law, in our opinion, the extraordinary change that occurred after the execution of the contract must be regarded by the judge in the present case33."
The change does not necessarily have to cause economic destruction or severe damage of the debtor. “For example, even if the debtor who undertakes an act whose cost is increased extraordinarily for unforeseen reasons, he may be entitled to demand the correction of this situation contrary to the rule of good faith, and may have the right to terminate the contract34."
If the balance between the acts is shaken in mutual contracts and the debt becomes difficult to perform due to extraordinary changes, collapse of the basis of the transaction becomes an issue. Unusual price increases in the market are not considered sufficient reasons for the amendment or termination of the contract.
The Court of Appeal Assembly of Civil Chambers stated in its decision35 that the 2001 crisis was a predictable and normal situation, as follows:
“That the merchant who executed a contract without taking the necessary measures and incurred a debt, demands the adaptation of the contract on the basis of a payment difficulty that can be prevented if it takes the necessary measures in a prudent manner, is not an acceptable situation in the rule of law. As explained above, in our country, devaluations have been announced since 1958, and currency adjustments are made frequently and the value of Turkish currency is reduced against the dollar and other foreign currencies. (…) It is known that devaluation and economic crises do not occur suddenly; they occur after certain economic bottlenecks in the market.”
However, it is stated that it is unfair to expect that the contracting parties should foresee any inflation rates that cannot be predicted by economists and that the important principle is the predictability of the decrease in the value of money and the effect on the parties36.
2. The Balance Between Actions Becomes Excessively Unbalanced due to Changing Conditions
The performance of an act that causes the destruction of the debtor is interpreted as a criteria other than an excessive imbalance between actions in order to enable the adaptation of the contract in the Court of Appeal’s decisions before the entry into force of Article 138 of the TCO. It should be noted that the performance of the act that caused the destruction of the debtor does not require being pursuant to Article 138 of the TCO. However, in some recent decisions, such as the decision cited below, it appears that the Court of Appeal still considers this is necessary:
The situation which is not an unpredictable and unforeseeable situation from the point of the plaintiff’s company who has the responsibility to act as a prudent merchant (…), on the other hand, the fact that continuation of a oneyear contract between the parties under the same conditions does not cause the economic destruction of the plaintiff from the expert report received, in other words it is decided to refuse the case on the grounds that the basis of the transaction does not collapse37(…)
B. Negative Clause
1. Acts that Have Not Been Performed or Have Been Performed by Added Annotation
As a rule, the party affected by the changing circumstances and conditions should not have fulfilled any act in order to demand the adaptation of the contract to the new conditions. If the party fulfills the act without reservation despite the changing circumstances and conditions, that party can no longer demand the adaptation of the contract to the changing circumstances. The majority opinion in the doctrine is that it should be considered that fulfilling the act without reservation is an indication that there is no difficulty in the performance, therefore the acts should not have been performed on the date of adaptation demand.38 According to minority opinion, it is possible to adapt the contract even if the performance is carried out without reservation39 because the performance of the debt does not mean that the debtor is not severely affected by changing conditions. The situation of the person who borrows from another person to perform their debt is an example of this situation.
The 13th Legal Chamber of the Court of Appeal also decides on the majority opinion of the doctrine on the subject. As seen in the decisions of the Chamber below, fulfillment of an act without reservation causes the loss of the right to demand adaptation:
“In addition, the acts should not have been fulfilled yet. If the plaintiff performs his acts without “mental reservation” despite the changing circumstances, he cannot demand adaptation.”40 And,
“In spite of this, the plaintiff continued to comply with the contract until September of the same year. It should be accepted that the claimant has lost the right to demand an adaptation proceeding, since it should be deemed that the claimant has adopted the contract and has accepted that the transaction basis has not collapsed after the economic crisis. Therefore, the court should have decided to dismiss the case instead of deciding in written form which is contrary to law and due to and also the cause of the cancellation41."
2. Absence of the Failure of the Debtor with Regard to Changing Circumstances and Conditions
The debtor should not cause the event creating hardship or the hardship42.
In its decision, the Court of Appeal stated:
“The plaintiff who demands the adaptation, should not create a change in circumstances and conditions. The changing circumstances and conditions should not be foreseeable (predictable) or expectable in respect of the parties, or events can be foreseeable but the extent and manner of their impact on the contract should not be predictable43."
That the parties are in default prohibits demanding adaptation. “In terms of our law, fault is not necessary to be in default. However, in the case of adaptation, the default constitutes a fault. However, if there is no fault in default, then it is accepted that the related party may demand an adaptation44."
The Court of Appeal considers the default in its decisions and rejects the adaptation demand of the defaulting party45.
3. Change of Conditions and Circumstances Are Not Predictable or Expected
One of the fundamental conditions for the adaptation of the contract under Article 138 of the TCO is that the conditions at the time of the execution of the contract were changed unpredictably46.
All events that constitute a force majeure are unpredictable, as they cannot be predicted by a reasonable person. “Whereas, normal expensiveness, fluctuations in the economic conjuncture, a decrease in the value of money, changes in weather conditions and normal regulations in the legislation are considered to be predictable47".
In addition, in the practice of the Court of Appeal, it is stated that if the contracting party is a merchant, the situation changes should be foreseen in the framework of the obligation to act as a prudent merchant. For example, in one decision “Again, considering the plaintiff’s obligation to act as a prudent merchant, it was decided that the case should be rejected on the grounds that none of the conditions required for adaptation according to Article 138 of the TCO had been made for the plaintiff48."
While the Court of Appeal tends to take this position, some authors in the doctrine state that the fact that the contracting party is a merchant does not always require foreseeing the change of conditions. It is argued that it is important to determine whether a reasonable person in his place can foresee this situation49.
4. Absence of Negative Adaptation Provision in the Contract
In cases where negative adaptation provisions are agreed, the rules must be applied in principle. This situation is stated by the Court of Cassation: “A person who undertakes the risk of changing terms and conditions with a provision in the contract avoids himself from this risk on the basis of the rule of good faith and fairness.”50 However, in some cases, it may still be possible to enforce Article 138 of the TCO in spite of the existence of negative adaptation provisions.
In some cases, requesting the implementation of the provisions according to the contract may mean the abuse of the right under Article 2/2 of the TCC. In such cases, the judge may review the contract in accordance with the changing conditions despite the adaptation provisions of the contract.
The General Assembly of the Court of Appeal stated in its decision that51:
“In spite of a positive and negative adaptation provisions in the contract, that the requesting the implementation of the provisions according as the contract on the basis of these provisions, may mean the abuse of rights under Article 2/2 TCC. In such a case, the adaptation should still be made if there is excessive instability between the acts despite the adaptation provision of the contract”.
In this context, the adaptation provisions which determine the risk sharing may also be subject to adaptation.52 In other words, adaptation provisions may also be adapted. When these conditions are fulfilled in accordance with Article 138 of TCO, adaptation shall be requested to the judge at first.
IV. CLAIM AND RESULTS OF ADAPTATION
A. Adaptation of the Contract
If the performance becomes extremely difficult, the debtor may demand adaptation of the contract to the new conditions, or if not, he may demand the termination of the contract. These rights given to the debtor are not elective. The judge shall exercise its judicial discretion when adapting the contract. In other words, the judge is free to determine the amount and method. Also, it should be noted that the judge may adopt a different method than the plaintiff requested when he/ she deems it necessary. However, in any case, the judge shall pay regard to the interests of the parties and shall make the most equitable decision. The judge shall apply to the rules of interpretation by evaluating the purpose, meaning of the contract and the intentions of the parties. The adaptation is considered as a constitutive decision due to the fact that it occurs with the decision of the judge.
B. Turnover of the Contract
The termination of the contract according to Article 138 of the TCO, can be possible as long as all the conditions of Article 138 of TCO exist collectively and to the extent that the narrow adaptation cannot be adapted. In spite of the fact that narrow adaptation is possible, that the common will of the parties may be contrary to this, requires the termination of the contract. Since termination is the subject of continuous contracts that proactively expire, though the turnover is subject of in terms of the short-term contracts are intended to be effective retroactively expire.
Even if the debtor demands the judge terminate the contract directly, he/she should make a judicial assessment of the situation. The judge must first look at whether adaptation is possible. However, in cases where the contract would never be established if the parties knew the fact that created the hardship or the situations shows that the adaptation is no longer possible, the judge may decide to avoid the contract. In addition, the plaintiff should indicate that he/she demands to use the right to avoid the contract.
As the termination of the contract is a heavy measure, compensation may be awarded in favor of the other party due to the risk being taken from the other party and given to the party. As a matter of fact, the parties do not cause hardship which means they do not have fault, for adapting the contract due to the hardship. Notwithstanding the fault, the said price shall be awarded in order to share the risk fairly and ensure fairness between the parties. However, the adjustment compensation should not be awarded in any case53. Although the law does not provide explicit regulation in this respect, it is argued that the second paragraph of Article 331 of the TCO (adjustment fee in case of extraordinary termination of the lease contract) should be applied by way of analogy54.
C. Expiration of the Right to Adaptation and Foreclosure
In accordance with Article 138 of the TCO, in the case of the abovementioned conditions, the demand for the adaptation of the contract should be asserted unconditionally of any time requirement (in a reasonable time that does not constitute a violation of the rule of good faith set out in Article 2 of the TCC) from the date on which the fundamental change occurred in the present situation. The demand for the adaptation of the contract is not subject to any foreclosure period in principle. According to the doctrine and case law of the Court of Appeal, it is stated that any change in the current situation based on the adaptation request that has not been asserted for a long time shall hinder the demand of adaptation of the contract based on this reason. In the doctrine, it is stated that the use of the right to adapt bears its consequences and is removed, due to the fact that it is a formative right that expires after it is asserted.55 Due to the fact that the adaptation request is a formative right, it can be ended by the expiration of the foreclosure period. There is no foreclosure period determined in Article 138 of the TCO. If the parties have not set a time limit, there is no foreclosure period for the right to adaptation. In the doctrine, a solution was created in order not to cause any uncertainty against the addressee in terms of formative rights that is not subject to a foreclosure period. According to one opinion, a right which has not been used for a long time in accordance with the rule of good faith means the right is waivered.56 The waiver of the right to adaptation is another reason for the expiration of formative rights. According to another view, it is possible to waive the unexpected situation in advance. However, the objection to the use of the right for adaptation based on this provision in the contract can be considered as an abuse of the rule of good faith under the circumstances in the present case57.
V. SCOPE OF APPLICATION OF THE TCO ARTICLE 138 DUE TO ECONOMIC CRISIS AND DEVALUATION
Although any sudden fluctuations in the economy may cause a break in the balance between the performances and result in devastation of the parties, the settled case law of the Court of Appeal is that this situation is foreseeable at the stage of establishing the contract. The reason for this is that Turkey is experiencing an economic crisis and a loss of value every 10 years, and so it is necessary for the parties to take this situation into account when establishing contractual relations. However, the impact on the substantial contractual relationship of each economic crisis should be carefully considered. The impact of the effect should also be taken into account, for example, whether the effect can be expected in terms of the contractual relationship.
The Resolution of the President on the Amendment to the Resolution No. 32 on the Protection of the Value of Turkish Currency dated 13 September 2018 and numbered 85 in the Resolution dated 32.09.1989 and numbered 32, introduces limitations regarding restrictions on foreign currency indexed contracts among those resident in Turkey. In this context, it is forbidden to decide on the contract price and any other payment obligations arising from these contracts in terms of foreign currency or foreign exchange in all types of movable and real estate leasing, leasing, labor, service and construction contracts, including movable and real estate purchase and sale, car rent and leasing. In accordance with the regulations, it is mandatory to adapt the types of contracts determined in foreign currencies: “Within thirty days from the date of entry into force of this Resolution, the prices determined in foreign currency in the contracts shall be re-determined by the parties as Turkish Lira, except in cases determined by the Ministry.
VI. CONCLUSION
Article 138 regulated by the TCO has been shaped around the precedent of the Court of Appeal and doctrine during the ACO. The adaptation of the contract has an exceptional characteristic and it should be kept in mind that the will of the parties and the contract should be sustained. It will come up only when the conditions are fulfilled and the parties are no longer expected to continue their performances. The judge must first choose the way of sustaining the contract. In this context, he may add provisions or change the provisions in the contract. However, even if the contract is adapted, he may use the right to terminate the contract if the balance of benefits between the parties cannot be achieved. In case of failure to achieve justice despite the termination, the judge is able to award equalization compensation in favor of the aggrieved party. Although established case law of the Court of Appeal suggests that Turkey has predictable economic terms, the judge should make additional evaluation of the changes according to each event and its impact upon the contract.
BIBLIOGRAPHY
AYŞE ARAT, Sözleşmenin Değişen Şartlara Uyarlanması, Ankara 2006
BAŞAK BAYSAL, Sözleşmenin Uyarlanması BK m. 138 Aşırı İfa Güçlüğü, 2nd Edition., Ankara 2017
FIKRET EREN, Borçlar Kanunu Genel Hükümler, 18th Edition, Ankara 2015
GÖKHAN ANTALYA, Borçlar Hukuku Genel Hükümler, Vol 3, Istanbul 2017
IBRAHIM KAPLAN, Hakimin Sözleşmeye Müdahalesi, 3rd Edition, Ankara 2013
ILHAN KARA, Tüketici Hukuku, Ankara 2012
KEMAL OĞUZMAN - TURGUT ÖZ, Borçlar Hukuku Genel Hükümler Vol. I, Istanbul 2010
KEMAL TAHIR GÜRSOY, Hususi Hukukda Clausula Rebus Sic Stantibus: Emprevizyon Nazariyesi, 1949
PINAR ALTINOK ORMANCI, Sürekli Borç İlişkilerinin Haklı Sebeple Feshi, Istanbul 2011
RONA SEROZAN IFA, İfa Engelleri Haksız Zenginleşme, Vol 3, 6th Edition, Istanbul 2014
SELIN GÜLBAHAR SÜZGÜN, Sözleşmenin Değişen Koşullara Uyarlanması, 2018
TURGUT UYAR, Türk Borçlar Kanunu Şerhi Vol.1 Article 1-236, 2012
FOOTNOTE
1 Official Gazette(OG) dated 04.02.2011, numbered 27836.
2 OG dated 08.05.1926, numbered 366.
3 Article 48 of The Constitution of the Republic of Turkey “Everyone has the freedom to work and conclude contracts in the field of his/her choice. Establishment of private enterprises is free.”
4 Rona Serozan İfa, İfa Engelleri Haksız Zenginleşme, Vol. 3, 6. Ed., Istanbul 2014, p.134.
5 Court of Appeal (CA). 3. Civil Chamber (CC), numbered E. 2017/6433 K. 2017/10426, dated 19.6.2017.
6 Gökhan Antalya, Borçlar Hukuku Genel Hükümler, Vol 3, Istanbul 2017, p. 163.
7 Başak Baysal, Sözleşmenin Uyarlanması BK m. 138 Aşırı İfa Güçlüğü, 2nd Edition, Istanbul 2017, p.14.
8 CA 13. CC, numbered E. 2003/7931, K. 2003/12902, dated 30.10.2003; numbered E. 2001/7785 K. 2001/9849 dated 1.11.2001; numbered E. 2002/13514 K. 2003/528 dated 23.1.2003; numbered E. 2000/1817 K. 2000/1883 dated 2.3.2000; numbered E. 2001/10316 K. 2001/11438 dated 6.12.2001; numbered E. 2003/5675 K. 2003/10165 dated 16.9.2003; numbered E. 2003/4970 K. 2003/4662 dated 17.4.2003; numbered E. 2003/6198 K. 2003/10655 dated 24.9.2003; 2001/11582 K. 2002/583 dated 24.1.2002.
9 Fikret Eren, Borçlar Hukuku Genel Hükümler, 18th Edition, Ankara 2015, p. 482.
10 There was a provision in ACO allowing the adaptation relating the contract of construction that agreed the lump-sum and this provision was taken into consideration by analogy in terms of other contracts. Bkz. Article 365/2 of ACO The article 482/2 of TCO mentioned below is the provision of this provision in the latest Law.
11 Baysal, p. 117.
12 CA.6. CC, dated 21.11.2016, numbered E. 2015/11014 K. 2016/6873.
13 Turgut Uyar, Türk Borçlar Kanunu Şerhi, Vol.1, Article 1-236, 2012, p. 912.
14 Supreme Court Assembly of Civil Chambers (SCACC), dated 15.10.2013, numbered E. 2003/13- 599 K. 2003/599.
15 Ayşe Arat, Sözleşmenin Değişen Şartlara Uyarlanması, Ankara 2006, p.174.
16 Pınar Altınok Ormancı, Sürekli Borç İlişkilerinin Haklı Sebeple Feshi, Istanbul 2011, p.111.
17 OG dated 08.12.2001, numbered 24607.
18 Ormancı, p. 117-118.
19 Ibid, p. 122.
20 Baysal, s.273.
21 Ibid, p.293.
22 Art. 7 of Law on Enforcement and Implementation the law of the Turkish Code of Obligations “Article 76 of the Turkish Code of Obligations on public order and general morality and provisional payments, Article 88 on interest, Article 120 on default interest and Article 138 on hardship shall also be applied in cases in which it is observed.”
23 İbrahim Kaplan, Hâkimin Sözleşmeye Müdahalesi, 3.Ed., Ankara 2013, p.116.
24 Kaplan, p. 116.
25 Ibid, p. 117.
26 Arat, p. 95.
27 Kemal Tahir Gürsoy, Hususi Hukukda Clausula Rebus Sic Stantibus: Emprevizyon Nazariyesi, 1949, p. 108.
28 Kemal Oğuzman/Turgut Öz, Borçlar Hukuku Genel Hükümler Vol. I, 2010, p.602-603.
29 Arat, p. 95.
30 CA. 13. CC, dated 8.2.2016, numbered E. 2014/48624, K. 2016/3280.
31 CA. 13. C, dated 29.5.2003, numbered E. 2003/3007, K. 2003/7017.
32 CA. 13. C, numbered E. 2004/875 K. 2004/3359 dated 15.3.2004; E. 2012/8250 K. 2013/2623 dated 7.2.2013. ,
33 İlhan Kara, Tüketici Hukuku, Ankara 2012, p. 698.
34 Oğuzman/Öz, p.569.
35 SCACC, dated. 15.10.2003, numbered E. 2003/13-599, K. 2003/599.
36 Arat, s. 100.
37 CA. 19. C, dated 26.1.2017, numbered E. 2016/10978, K. 2017/538.
38 Kaplan, p.145; Arat, p. 123.
39 Baysal, p. 317.
40 CA. 13. CC, dated 05.05.2011, numbered E. 2010/17858, K. 2011/7265.
41 CA. 13. CC, dated 27.12.2002, numbered E. 2002/9911, K. 2002/14153.
42 “Nemo auditur propriam turpitudinem allegans” (No one can be heard to invoke his own turpitude)
43 CA. 13. CC, dated 05.05.2011, numbered E. 2010/17858, K. 2011/7265.
44 Arat, p. 148.
45 “The debtor in default cannot make a request to adapt his debt.” SC. 11. C, numbered E. 2002/7816 K. 2003/302 dated 16.1.2003; numbered E. 1997/2072 K. 1997/4215 dated 3.6.1997; numbered E. 1995/534 K. 1995/4540 dated 2.6.1995.
46 Selin Gülbahar Süzgün, Sözleşmenin Değişen Koşullara Uyarlanması, 2018, p.78.
47 Kaplan, p,145.
48 CA. 23. CC, dated 31.5.2017, numbered E. 2015/6940, K. 2017/1638.
49 Baysal, p. 416.
50 CA. 13. CC, dated 3.2.1997, numbered E. 1997/401, K. 1997/640.
51 SCACC, dated 15.10.2003, numbered E. 2003/13-599, K. 2003/599.
52 Baysal, p. 276.
53 Arat, s. 213.
54 Ibid, p. 390.
55 From Baysal, p. 392, Kemal Tahir Gürsoy, Hususi Hukukta Clausula Rebus Sic Stantibus- Emprivizyon Nazariyesi, Güney Matbaacılık 1950, p. 184.
56 From Baysal, p. 392. naklen Gürsoy, p. 184.
57 From Baysal, p. 399, Enis Sarıal, “Beklenmeyen Halin Sözleşmeye Etkisi”, Yargı Dergisi 1980/04, p. 28.
58 SCACC, dated 15.10.2003, numbered E. 2003/13-599, K. 2003/599.
59 Baysal, p. 248.
