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performance and counter-performance by unexpected changes such that
the performance of the obligation would be onerous”
5
.
Article 138 of the Turkish Code of Obligations No. 6098 (TCO)
provides for the adaptation of all types of contracts generally under the
heading of hardship. This new provision will be examined below.
Required Conditions for Adaptation According to Art. 138 TCO
Art. 138 TCO provides for the adaptation and the revocation of the
contract if adaptation is not possible in the third section, “Termination
of the Debts and Obligations”
6
. According to art. 138 TCO, entitled
“
Hardship
”, all of the required conditions mentioned below should be
present to justify the adaptation of a contract.
An Unexpected Event, Which Was Unforeseen and Not Expected
to be Foreseen by the Obligor, Must Occur after the Contract Was
Entered into
This means events which the obligor is not obliged to take into account
during the course of ordinary daily life, such as war, economic crisis and
high devaluation. The essential criterion here is whether the parties can
be expected to foresee the relevant event, considering all possible risk and
assumptions or not. It is assumed that in high-risk cases, such as aleatory
contracts and speculative transactions, the parties implicitly agree not to
assert hardship later
7
.
There Must be No Negligence on the Obligor’s Side in the
Occurrence of the Unexpected Event
The obligor must be non-negligent in the occurrence of the unexpected
event to be able to request the adaptation of the contract. If the relevant
event occurs due to a default by the obligor, the obligor may not request
5
See Cas. C. 13. Civil Chamber, 7.2.2013, 8250/2623,
(www.kazanci.com.tr).
6
Of the foundation of the transactions played an important role in the general provision of the
adaptation in TCO. See Preamble of Articles of the TCO No. 6098, Art. 137.
7
Gülekli, Yeşim
: “Hardship and theory of the collapse of the foundation of transactions
in case of material conceptions that have become the basis of the contract are found to be
incorrect.”, MHAD 1990, p. 43-69.