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NEWSLETTER 2011

218

of the legal transaction has partially or totally collapsed, and in case the

agreement needs to be adjusted and adapted to the new circumstances in

accordance with the interest of justice.

The theory of adaptation of agreements is supported especially by

the German doctrine. In accordance with the prevailing opinion in the

German doctrine, the basis of the legal transaction of the agreement

is formed by the currently existing and also forthcoming elements

and circumstances and the material facts that have an effect on the

conclusion of the agreement. In the event that the equilibrium between

the obligations of the parties has become unbalanced in such a way that

one of the parties cannot be expected to meet the terms and conditions

of the contract as a result of increased burden the issue of collapse of

the basis of legal transaction arises. Furthermore, under Swiss law that

widely influenced Turkish law, the doctrine supports that there should be

a solution in conformity with the good faith principle. Accordingly, the

parties may demand the adaptation or the termination of the agreement,

in the event that they cannot be expected to comply with the provisions of

the agreement pursuant to the good faith principle.

The conditions for the adaptation of the agreement are laid down

under the decision of the 13

Civil Chamber of the High Court of Appeals

dated 17.05.2011 and numbered 2001/4384 E. – 2001/5327 K:

“Following the legal definition of the theory of adaptation, we

should emphasize its conditions.

The events that occur after the conclusion of the agreement and

during its performance should be extraordinary and objective.

For instance, the devaluation, inflation etc.

Additionally, the equilibrium between the obligations of the

parties should be considerably and clearly unbalanced. On the

other hand, in the event that the circumstances stated below

occur, the agreement cannot be adapted.

The agreement and the law should not contain any provision

concerning the changing circumstances. In case the parties

foresee and assume the risk of the changing circumstances with