2016.ANA METIN ingilizce.01

The Reason Underlying the Issue in Implementing TCO Art.

138 Regarding Foreign Currency Debts

TCO Art. 138/f.2 explicitly enables the hardship provision to be

applied to foreign currency debts, as well. The underlying causes of

controversial decisions regarding foreign currency debts, in spite of the

existence of such explicit provision, are the other implementation con-

ditions of the provision.

Indeed, in spite of the fact that this Article does not include

detailed explanations on implementation conditions

, in order to claim

adaptation or revocation of the agreement as per Art. 138 of the TCO,

the basis of the agreement shall be changed and the performance shall

become excessively burdensome for one of the parties because of such

change; additionally, these changes shall be “

unforeseeable.

” At this

point, the critical question is: Do the sudden changes in foreign

exchange rates in foreign currency debts require adaptation as per Art.

138 of the TCO or not?

Diversity in Court of Cassation Decisions

There are two dissenting opinions regarding the abovementioned

question. According to the first opinion, if the increase in the foreign

exchange rate is “

unforeseeable,

” there shall be no reasons not to apply

Art. 138 of the TCO. However, according to the opposing view, by tak-

ing Turkey’s economic conditions into consideration, it cannot be

argued that the sudden and eminent increase in the foreign exchange

rates is “

unforeseeable.

” Pursuant to such view, the obligor of foreign

currency is considered as he also undertakes the risk of change in the

foreign exchange rates.

Decisions that are in accord with both of the aforementioned opin-

ions can be observed in the latter decisions of the Court of Cassation

that are rendered as of the entry into force of Law No. 6098.

For instance, in accordance with the decision (11149/26086) of the

Civil Chamber of the Court of Cassation, dated 28.10.2013: “

The

lawsuit is about a claim of adaptation to a Japanese Yen indexed mort-

gage loan which is being used by the claimant, due to the changes that

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NEWSLETTER 2015

Please see the Newsletter article of August, 2013,