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LAW OF OBLIGATIONS
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a provision in the agreement, they cannot avoid this risk by
claiming the good faith principle.
If the party demanding the adaptation of the agreement had
an effect on the modification of the circumstances with its own
negligence, he cannot demand the adaptation. The circumstances
should not be predictable, and even if they are predictable,
the parties should not assume the scope of their effects on the
agreement. Additionally, the obligations should not be already
performed. In the event that the claimant performed the obligations
without a reservation, he cannot demand the adaptation of the
agreement.”
The conditions laid down in the decision above are followed and
cited in the other decisions of the High Court of Appeals, and formed
as a judicial precedent. The lawsuits concerning the adaptation of the
agreements have been widely applied during the economic recession
where pecuniary obligations of the debtor contractors adversely effected.
The theory of adaptation of the agreements has been regulated
under Article 138 of the New CoO entitled “Excessive Difficulty in
Performance”. The aforesaid article is as follows:
“In the event that an extraordinary circumstance that cannot be
foreseen or expected to be foreseen by the parties arises because
of a reason that does not originate from the debtor and modifies
the facts that exist during the execution of the agreement to the
detriment of the debtor in such a way that he cannot be expected
to perform his obligations, or has significant difficulty to perform
the obligations in accordance with the good faith principle, and
in the event that the debtor has not yet performed the obligations,
or performed with a reservation, the debtor is entitled to demand
the adaptation of the agreement to the new circumstances,
or if it is not possible, to cancel the agreement. In principle,
concerning the agreements with continuous performance, the
debtor shall exercise the right of termination instead of the right
of cancellation.”
Consequently, the article stated above repeats the conditions required
for the adaptation of agreements listed in the decisions of the High Court