e-book2013

NEWSLETTER 2013

256

and then only if the adaptation is not possible, he may request the

revocation of the contract. The judge examines the case ex officio and

may determine the obligation and its extent on his own if the adaptation

is possible. Meanwhile he must definitely consider the equilibrium of

benefits and the risk between the parties.

If Adaptation of the Contract Is Not Possible; the Obligor May

Revoke the Contract

Where a contract comprises continuing obligations, the right to

terminate replaces the right to revoke, as stated in the last sentence of TCO

art. 138/1. It seems possible to revoke a contract with an extrajudicial

notification, however if the court holds that the adaptation was possible,

then the revocation would be invalid. Therefore it is suggested that the

right to revoke be exercised before the court.

Conclusion

Unforeseen supervening events can fundamentally change the

circumstances which are the basis of a contract after the contract was

entered into and this change may result in excessive burden for the

parties as a consequence of the altered equilibrium of the contract. This

situation demonstrates that the principle of

sanctity of contracts (pacta

sunt servanda)

, which is also adopted in Turkish law, may be contrary to

the principle of good faith.

In such cases, contracts should be adapted in order to restore the

balance regarding the risk allocation of the parties.

Although the Code of Obligations No. 818 did not explicitly provide for

the adaptation of the contract, the scholars and the jurisprudence accepted

the institution of adaptation. There were discussions about the legal basis

of adaptation, and most of the opinions were based on art. 2 CC.

The Turkish Code of Obligations No. 6098 clearly provides for

the adaptation of the contract in case of hardship and thus the former

discussions came to an end. The obligor may demand the adaptation

and the revocation of the contract if adaptation is not possible through

meeting all of the required conditions, as specified under art. 138 TCO.