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CONDITIONS THAT SHOULD BE CONSIDERED WHILE MAKING A CONTRACT IN THE LIGHT OF THE PANDEMIC

Covid-19 pandemic which shows its effects in our country and in the world, has been declared as a pandemic by the World Health Organization, in this context, unpredictable results have occurred in many areas of life. In terms of contracts, concepts such as the principle of pacta sunt servanda, whether the pandemic can be accepted as force majeure, its effect on the existing contracts, the unexpected situation are examined in our articles titled “Contract And (Pacta Sunt Servanda) In Turkish Law” and “Unexpected Event, Force Majeure, Pandemic And Their Effects On Contracts” within the scope of Covid-19.

Besides the effect of this process on the existing contracts, it is also very important what are the points that should be considered in contracts to be made during or after this process. As a matter of fact, priority is given to the will of the parties, especially in terms of commercial contracts, except for a very limited area (limited number of mandatory provisions of the Laws).

The first of these matters is the determination of the force majeure and its consequences in the contracts. “If a case that meets the force majeure conditions occurs, it should firstly checked that whether the force majeure conditions are regulated in the contract.”[1] In this context, it should be noted that; in the provisions of force majeure of the contracts, what the force majeure cases are may be listed as examples or limitedly. Besides, it is also possible to state which situations will not constitute a force majeure. At this point, what needs to be considered is the fact that such provisions should be added for both parties. Otherwise, it may be considered as standardized terms and the provision may become null and void. Indicating what the force majeure might be and their consequences while making a contract; enables parties to foresee the consequences of the incident and give the parties the opportunity to take any measures on these issues, in case these events occur. However, it is very important here that the conclusions are not based on ambiguous expressions and are clear and cannot be interpreted differently. In this case, it will be beneficial for the parties to state their will clearly in order to avoid any problem of interpretation. In addition, as it is also examined in our article titled “Contract And Pacta Sunt Servanda In Turkish Law”, specifying these issues will also enable individuals to act in accordance with the contract within the framework of the principle of pacta sunt servanda. “If there is no force majeure or adaptation provision in the contracts of the parties, the default of the debtor which is stated in the Turkish Code of Obligations (Art. 117 ff of TCO), impossibility that the debtor is not responsible for (Art. 136 of TCO) and hardship (Art. 138 of TCO) regulations in the Turkish Code of Obligations will come to the agenda for persons who have difficulty in performing their debt due to COVID-19”[2]

Another issue is reserving the hardship cases in prepayment contracts. Hardship is regulated under Article 138 of TCO. “Excessive hardship could be based on financial or moral reasons. In extraordinary situations (war, economic crises, excessive inflation, devaluation, pandemics, etc.) that disrupt the balance between the obligations of the contract, it is regulated that the parties’ being deemed bounded to that contract would cause injustice and that the judge’s intervention to the contract may be requested in accordance with the Article two of the Turkish Civil Code.”[3] According to this provision, for the implementation of hardship, the conditions of the debtor not performing his debt yet or performing his debt by reserving his rights arising from hardship are sought. Therefore, reserving hardship in the contracts (prepaid contracts) will meet the condition that the debtor performed his debt by reserving his rights arising from hardship, even if the contract price has been paid in advance and shall grant the debtor the right to ask the judge to adapt the contract to the new conditions in accordance with Article 138 of the TCO shall also grant the right to rescission of contract if this is not possible. You may find detailed information on cases of adaptation from our article on Lawsuit Cases of Adaptation.

The third point that should be considered is the determination of alternative dispute resolutions in case of conflict. As it is known, many measures have been taken to protect public health in the pandemic process. One of the measures taken concerns legal processes. The measures mentioned are measures such as not having hearings, not being able to initiate enforcement proceedings, not being able to process, not sending notifications and pausing legal periods until June 15, 2020. This situation creates some problems in terms of resolving the disputes arising in this process. Methods of alternative dispute resolutions may be counted as; reconciliation negotiations between the parties, arbitrary mediation, arbitration, reconciliation within the scope of Article 35/A of the Attorneyship Act, compulsory mediation. Application to alternative dispute resolution methods may be regulated as mandatory or voluntary by the parties in the contract. Arrangement of these methods will allow Parties to resolve their disputes independently from the courts and to find solutions more quickly and easily in case of interruptions like the ones occurred in this process.


[1] Unexpected Event, Force Majeure, Pandemıc And Theır Effects On Contracts Article http://www.covid19legalturkey.com/unexpected-event-force-majeure-pandemic-and-their-effects-on-contracts/

[2] Prof. Dr. Başak Baysal, Av. Murat Uyanık, Av. M. Selim Yavuz; Koronavirüs 2019 (COVID-19) ve Sözleşmeler; (https://blog.lexpera.com.tr/koronavirus-2019-ve-sozlesmeler/)

[1] Contract And (Pacta Sunt Servanda) In Turkish Law http://www.covid19legalturkey.com/unexpected-event-force-majeure-pandemic-and-their-effects-on-contracts/


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