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Court of Cassation Decisions Regarding the Scope of the
Application of Article 138 of the Turkish Code of Obligations of
Indebtedness in Foreign Currencies
*
Assoc. Prof. H. Murat Develioglu
Introduction
Turkish Code of Obligations No. 6098 (“TCO”) that entered into
force on 01.07.2012 has a provision entitled “
hardship,
” which was not
found in the former Code of Obligations No. 818. It can be deduced
from the limited number of Court of Cassation decisions that such pro-
vision has a rather controversial implementation. Such implementation
shall be briefly evaluated, below.
TCO Art. 138 with regard to Foreign Currency Debts
As per the first paragraph of Art. 138 of the TCO, if an unexpect-
ed event occurs that was unforeseen and not expected to be foreseen
during the execution of the agreement, due to reasons that are not
caused by the obligor, the performance becomes excessively burden-
some for the obligor because of such unexpected event in light of the
principle of good faith, and the obligor performs his obligation by
reserving the right of hardship, or has not yet performed his obligation,
the obligor may request that the agreement be adapted in accordance
with the circumstances, as changed, or may revoke the agreement, if
adaptation is not possible.
The second paragraph of the aforementioned Article explicitly
allows for such provision to be applied to foreign currency debts.
LAW OF OBLIGATIONS
265
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Article of July 2015