Due to the significant political and economic developments in the world, there are sudden and hard changes in exchange rates in the recent period. As the social and economical effects that experienced in Turkey, there is no doubt that there will be more results from legal perspective regarding the increasing exchange rates,
Namely; the fluctuations and changes experienced for the parties signing the agreements in which the foreign exchange is included give rise to short and long term consequences and it is very difficult for one party to survive the contracted conditions in the face of the increasing exchange rate. The Code of Obligations aims to protect the contractual parties against such negative changes, and offers the possibility of adapting the contract to changing circumstances.
In this direction, it may come to the legal action to be taken in the direction of "ADJUSTING".
Adopted by the Supreme Court and the forms of contracts pursuant to the subsidiarity principle, the adoption of adaptations during the trial of Turkish Obligations Code effectuated, Article 138 of the Law "hardship" clause is regulated under the hood. Unforeseen by the parties in the contract, and provision was made at an extraordinary, unexpected situation arises for a reason not attributable to the debtor. At the time the contract is signed by parties, it changes the existing facts against the borrower at the time it is contrary to the good faith. If the borrower has not yet exercised the debts or has exercised his rights arising from the excessively difficulty of the performance, the debtor has been expressed as requiring the judge to adapt the contract to the new conditions and, if this is not possible, debtor may return without a contract.
When we look at the ground of the Article, "ADJUSTING" is related to the "collapse of the underlying basis of the transaction ", which is regarded as one of the exceptions to the contract loyalty policy in doctrine and practice. The base of the hardship is arise from the good faith stipulated in Article 2 of the Turkish Civil Code which is different form the concept of impossibility.
According to the Court of Appeal's opinion and letter of law the use of the right of adoption of the contract or returning from contract depends on the fulfillment of the following four conditions.
- At the time the contract was made, there must have been an extraordinary situation that was not foreseen by the parties and unanticipated.
- This situation should not be caused by debtor.
- This should have changed the existing facts at the time the contract was made against the debtor at the time when it would be contrary to the good faith to be demanded from debtor.
- The borrower must have exercised his / her rights, owing to the fact that the debt has not yet been exercised or that it has become extremely difficult to perform.
If all the conditions of adjusting according to the article are met, the debtor may want the judge to adapt the contract to the new conditions. If this is not possible, the borrower could return from the contract; as a rule, in the case of permanent contracts, we use the right to terminate, and we can specify how the adaptation case accepted in the practice.
According to our explanation and the principle of the law, after searching of the adoption conditions, if the parties could not unforseen the changing extraordinary and unexpected conditions and if the debtor has not been fulfilled the deed, te debtor may ask for adoption.
The recent fluctuations in economic fluctuations due to the 17/25 December and 15 July coup attempts and the attitudes of our country in relation to international relations can be regarded as a necessary condition for adaptation cases but it should be evaluated in each case whether it is a sufficient condition.
Another common misconception about adaptation cases is that this case relates only to lease contracts. Whereas the provision of Article 138 of the Law of Turkish Obligations may come into force in respect of any kind of contract.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.