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have occurred in the foreign exchange rates. It is understood that the
claimant initially had the opportunity to freely choose the type of the loan
and, accordingly, chose the type of loan by electing to become indebted
by an allowed foreign currency, and signed a long term agreement; the
assertion that the respondent bank is manipulating the claimant has not
been proven. On the other hand, the lawsuit is filed 3 years and 7 months
later than the initiation of the loan repayment; and given that the
obligor has not lapsed into default in terms of installments, it should be
accepted that the claimant has acknowledged the agreement.
”
According to the decision (1042/31247) by the same chamber,
dated 12.12.2013: “
In the lawsuit concerning the adaptation claim,
despite the fact that the claimant had the opportunity to foresee the risk
beforehand, he made use of the loan. Moreover, the lawsuit in question
is filed three years later than the initiation of the loan repayment;
hence, it should be accepted that the claimant has acknowledged the
agreement. Taking everything into consideration, it is understood that
the requirements of adaptation are not fulfilled in the case at hand. By
considering these mentioned facts, the Court shall refuse to hear the
lawsuit in its entirety.
”
However, the same chamber of the Court of Cassation came to dif-
ferent conclusions in its other decisions. For instance, a decision
(16898/18895) dated 13.06.2014 explicitly found as follows: “
The
claimant initially requested the determination of the validity of the
agreement and, if so, the adaptation of the conditions of the agreement
by alleging that he used a Swiss Franc (CHF) indexed mortgage
finance loan, an extreme difference in the foreign exchange rate has
occurred between the date of usage of the loan and the current date,
and therefore, the payment of the installments has become extremely
burdensome for him. Due to the fact that the Turkish Code of
Obligations No. 6098 is in force as of the date of the lawsuit, adapta-
tion may be claimed. The Court has emphasized that the possibility of
devaluation of Turkish Lira in foreign currency debts can easily be
foreseen. However, the Court has not explained the objective criteria
in drawing such conclusion, and solely evaluated the latest economic
depressions. The judge is obliged to intervene and adapt the agreement
in the case of an extreme and unforeseeable change in the agreement
conditions.
”
LAW OF OBLIGATIONS
267