Adaption of the contract to changing circumstances is a legal procedure for equilibation when the conditions of the contract has became unbearable without unpredictable and nonimputability to the interested parties.

The party who is not expected to perform his/her obligations under the changing conditions due to Turkish Civil Code (‘’TCC’’) article No. 2, may claim the adaption, annulment or withdrawal from the contract.

As a rule, the principle of “pacta sunt servanda” shall apply to all contracts. Which means parties shall perform their obligations contarcually. Nevertheless parochially implementation of the principle of  “pacta sunt servanda” by the TCC article No. 2;

‘’Every person must act in good faith when exercising his/her rights and performing his/her obligations.The manifest abuse of a right is not protected by law.’’

is required by law and equity.

The legal regulation of adaption of the contract to changing circumstances takes part in article No. 138 of Turkish Code of Obligations (‘’TCO’’) numbered 6098.

 I.HARDSHIP

I.1.According to the Article No.138 of TCO;

“An extraordinary situation that is not foreseen and expected to be predicted by the parties at the time of the contract arises due to a reason that does not arise from the debtor, and it changes the existing facts  at the time of the contract  against the debtor to the extent that it is contrary to the rules of honesty for claiming to perform, and the debtor has not yet performed its debt or has become excessively difficult to perform. If he performed his rights reserved, the debtor has the right to ask the judge to adapt the contract to the new conditions, and if this is not possible, has the right for withdrawal from the contract. In permanent performance contracts, the debtor uses the right of annulment as a rule instead of the right to withdrawal.”

 I.2. In order to adapt a contract to changing circumstances all the terms that are listed in article 138 of the  Turkish Code of Obligations must have been occured. These terms are;

·         Occurance of an abnormal change of condition which is unpredictable and also not expected to be predictable after the sign of a contract.

·         Claiment should not be in fault

·         Extreme distortion of the balance between the performences undertaken by the parties

·         Act should not be performed yet or performed by reserving the rights due to extreme inability to perform

II. RIGHTS OF THE PARTY (DEBTOR)

II.1.Provided that all the conditions listed in TBK m 138 occured, debtor ( eventhough it is stated as debtor in the code it should be accepted that both parties who has suffered from the interest balance distortion may make a claim) claim may claim  the adaption of the contract to changing conditions if not possibble annulment of the contract or rescission fort he continues  contracts.

 II.2. There should be a lawfull contract. Only an existing and established contract can be adapted. It is not possible to make an adaption of a contract which is accepted as unestablished by law as aresult of not having an agreement on the essential aspects and/or there is a violation of the requirement as to form etc. The rule of law refuses the abuse of the adaption as well.

 II.3. Judge is bound up with claim. Fort his reason if the claimant who has demanded adaption but not demanded annulment of the contract or rescission the judge shall not give a ruleling of annulment or rescission of the contract by himself. If adaption is not accepted then the judge shall dismiss the case.But dismission is not an interpose for filing a court case for a annulment or rescission afterwards.

III. RESULTS OF ADAPTION CLAIM

III.1. Adaption: Eventough judge is bound up with the claim the adaption amount and method is defined by the judge. While  doing this Judge pays attantion to the interest balance and equity measures between the parties.

 III.2. Withdrawal from the contract: It is apply to the nonperformed contracts. At this stage nonperformed obligations is nullifyed and performed obligations may recalimed.

III.3. Termination of the contract: Performed obligations do not get affected by the annulment but can not be reclaimed and after the annulment abligation is nullifed and can not be claimed.

III.4. Equalisation: In the case of annulment and/or recission,  in compliance with the equitable principle judge may assess a compensation for the expenditures made by the parties in belief of establishing a contract.  In the course of assessment reciprocal expenditures should be taken into account.

CONCLUSION

Coronavirus (Covid-19), which has spread around the world and pronounced as a pandemic by the World Health Organization, has affected business life to a great extent. Changes encountered in business life, as a result of the legal arrangements and measures taken for prevention of the negative impacts of Covid-19, has an impact on the contracts in force by means of extreme inability to perform or preclude to perform.

We predict that there will be a number of various cases related with the adaption of the contracts to changing conditions due to the impact of the Covid-19 on business life in order to rebuilt the balance that has been destroyed by the epidemic.