e-book2011

LAW OF OBLIGATIONS

217

Adaptation of Agreements in the New Code of Obligations

Att. Süleyman Sevinç

The adaptation of agreements to changed circumstances was a legal

doctrine that was applied in practice under the Code of Obligations, even

though there weren’t any legal provisions included in the Act on this

matter. With the New Code of Obligations (“New CoO”), adaptation

of agreements has been regulated within the scope of the new code.

Therefore, this institution that was widely accepted and applied by the

practice has finally found basis in the legal system.

As is known, the Latin term

pacta sunt servanda,

in simple terms

“agreements-promises must be kept” is the legal maxim of contract

law. Consequently, the contractor parties are under obligation to comply

with the provisions of the agreement. On the other hand, in some

cases- especially in the occurrence of unforeseeable adverse conditions,

disruptive or extraneous events, the contractual obligation become either

impossible, or more onerous to perform therefore expecting the contractors

to perform their contractual obligations will not be suitable with the good

faith principle. Especially in the long-term synallagmatic agreements, the

circumstances when the agreement has been executed may have change

so drastically that the foundation of contract is altered, by becoming a

different one, at the time of its execution. The expectation of performance

of the contractual obligations from the burdened party in spite of such

unpredictable situations may be unfair and poises a contradiction with

the good faith principle laid down under Article 2 of the Civil Code. At

this point, the modifications that occurred between the execution and the

performance of the agreement need to be reflected to the restoration of

agreement. If the parties are required to comply strictly with the

pacta

sund servanda

principle, it may lead to numerous inconveniences and

commercial impracticability, and the theory of adaptation of agreements

was established to remedy such frustrations. The theory of adaptation of

agreements is a theory accepted by the doctrine and the High Court of

Appeals, concerning the cases in which the basis and expected purpose

Article of June 2011