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LAW OF OBLIGATIONS
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the adaptation unless he proves his non-negligence related to the default.
TCO art. 138 does not clearly specify the rights of the obligor in relation
to default, however the obligor, who proves non-negligence in the event of
default should be able to require the adaptation of the contract according
to the teleological interpretation of this article
8
.
Performance Must Have Become Excessively Burdensome for the
Obligor Because of the Unexpected Event in Light of the Principle
of Good Faith
The change must have effect on the essential points of the contract and
disturb the equilibrium of risks and benefits in the period between the date
of the performance of the contract and when the contract was entered into.
The performance of the contract must become sufficiently onerous and
excessively burdensome in the light of CC art. 2. If the excessive burden
already exists before the contract was entered into and was unnoticed only
by the obligor, the contract cannot be adapted pursuant to TCO art. 138. In
such a case, TCO art. 30 et seq. shall be applied to the contract.
Obligor Must Perform His Obligation by Reserving the Right of
Hardship or the Obligor Must Not Yet Perform the Contract
Reserving the right of hardship during the performance of the contract is
only possible where performance is partial; otherwise the full performance
would void the right to claim hardship and adaptation of the contract would
not be possible. In such a case, if an unexpected event occurs after the
partial performance, only the non-performed part will be adapted.
Rights of the Obligor
TCO art.138 provides the obligor two remedies where all the required
conditions of hardship are met:
The Adaptation of the Contract in Accordance with the Changed
Circumstances May Be Requested
The obligor may request the adaptation only before the court. The
obligor may first request the adaptation of the contract from the court,
8
Öz, Turgut
: Law of Obligations General Provisions Volume-1, Vedat, Istanbul, 2011, p. 211-
212.