59 COMMERCIAL LAW When the second paragraph of the same Article is evaluated within the framework of EPC Contracts, if the contractor’s debt will be rendered partially impossible, and the employer accepts partial performance, payment, which is the corresponding performance, shall be performed at that ratio. Thus, the contractual duties will continue. However, if the parties or the creditor did not consent to such performance, or if the corresponding act has an indivisible character, the full impossibility provisions of Article 136 of TCO will apply. Hardship is the most commonly faced situation when unforeseeable circumstances occur, and is regulated under Article 138 of the TCO. According to this Article, if an extraordinary situation that could not be foreseen, and could not be expected to be foreseen at the execution of the contract, emerges for a reason not caused by the debtor and changes the facts that were present when the contract was executed against the interests of the debtor in a way contrary to good faith principles, and the debtor did not perform, or performed by reserving their rights arising from the impossibility of performance, the debtor has the right to request adaptation of contract from the judge, and if that is not possible, to rescind the contract and, for EPC contracts, in principle, the debtor uses the right of cancellation instead of rescission. In cases where unforeseen circumstances that disturb the balance between the performances which require adaptation, and frustration of the contract occurs, the aforementioned institutions of the TCO will apply. However, as the regulations regarding force majeure and adaptation of contract are not mandatory, the parties may have adopted solutions provided by international institutions, such as the ICC, FIDIC, or other solutions that they have consented to. Therefore, to make determinations as to how the occurrence of unforeseen circumstance will affect the parties, whether or not there is a provision in the contract, must be checked in the first place.4 In addition, FIDIC Contracts that are the most frequently used “model contracts” across the globe in terms of EPC Contacts, regulates hardship and force majeure in a detailed article under the heading 4 Baysal, p. 93.
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