e-book2013

266 / 473

LAW OF OBLIGATIONS 253
In that period there were different theories of scholars and
jurisprudence on the legal basis of the adaptation of the contracts, apart
from work contracts.
Civil Code (CC) art. 2 was considered by the majority of Turkish
scholars and jurisprudence as the legal basis for the adaptation and
the revocation of contracts in case of a fundamental alteration of the
equilibrium of the contract. Almost every court decision about the
adaptation referred to said article 1. Nevertheless, besides the principle of
good faith, legal institutions were taken as a basis while determining the
legal basis for adaptation.
Some scholars argued that CO art. 365/2, which provides for the
adaptation and revocation of the work contract, could be applied to all
types of contracts by mutatis mutandis. The Court of Cassation referred
to that article in certain of its decisions regarding the adaptation2.
According to another opinion, the “theory of the collapse of the
foundation of transactions” was the legal basis for the adaptation of
contracts. This theory, which was legislated in Germany in 2001, suggests
that if circumstanceswhich became the basis of a contract have significantly
changed after the contract was entered into and the aggrieved party cannot
reasonably be expected to uphold the contract without alteration, then the
foundation of the transactions collapses thus, adaptation of the contract
may be demanded due to this collapse3. That theory has been invoked by
the Court of Cassation when deciding on cases involving the adaptations
of contracts4. For example, the Court of Cassation has defined the collapse
of the foundation of the transactions as the “distortion of the balance of
1 As an example, see Cas. C. 13. Civil Chamber, 30.3.1995 3221/3147, ).
2 As an example, see Cas. C. 13. Civil Chamber, 24.6.1997 5647/5759, ).
3 This theory is comprised of three possibilities: Hardship (Leistungserschwernisse), disproportion
between the performances (Äquivalenzstörung) and frustration of purpose of the contract
(Zweckstörung). See Baysal, Başak: The Adaptation of the Contract, On Iki Levha, Istanbul,
2009, p. 87. According to another opinion, the notion of the foundation of the transaction is
within the scope of CO art. 24/1 b.4. The notion of foundation of transaction which is used to
determine the substantial error during the conclusion of the contract is relied on for the collapse
of the foundation of transactions after the conclusion of the contract. There is only a temporal
difference between the substantial error and the collapse of the foundation of transactions. See
Baysal, Başak: The Adaptation of the Contract, On Iki Levha, Istanbul, 2009, p. 287.
4 As an example, see Cas. C. 13. Civil Chamber, 26.4.1994 2733/4120, ).