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LAWSUIT CASES OF ADAPTATION

The Covid-19 epidemic has become a global problem as it emerged in Wuhan, China and spread to the whole world. The epidemic of Covid-19, which is described as a “pandemic” by the World Health Organization, has caused adverse effects in many areas, especially in the economy, and brought many legal questions and problems. Within the scope of the negative effects of Covid-19 epidemic, especially in contractual relations, problems have started to be experienced in terms of fulfilment. The general principle in contractual relations is the principle of “Pacta Sunt Servanda in the Contract” and as a rule, the parties are obliged to fulfil the acts they have undertaken as agreed in the contract. Unexpected event, force majeure concepts, which are among the concepts related to the scope and exceptions of the principle of “Pacta Sunt Servanda”, have been examined in our articles titled “Contract And (Pacta Sunt Servanda) In Turkish Law” and “Unexpected Event, Force Majeure, Pandemic And Their Effects On Contracts“, adaptation cases will be examined in this article.

Lawsuit Cases of Adaptation in Our Legislation:

Lawsuit Cases of Adaptationare one of the exceptions to the principle of “Pacta Sunt Servanda in the Contract” as we mentioned in our previous articles. In terms of adaptation cases, the legal basis in our legislation is article 138 of the Turkish Code of Obligations, and the concept that is the basis for adaptation cases is the concept of “excessive difficulty of performance”. Regulation regarding this subject has been made in the 138th article of the Turkish Code of Obligations as:

If an extraordinary situation which is not foreseen by the parties at the time of the contract and which is not expected to be anticipated, arises from a reason which is not caused by debtor and changes the existing facts at the time against the debtor such a way as to violate the rules of honesty, if the debtor has not yet fulfilled his/her obligations due to the excessive difficulty of performance, the debtor shall have the right to request from the judge the adaptation of the contract to the new conditions and if this reveals to be impossible, to return from the contract. In the contracts involving a continuous obligation, the debtor shall, in principle, exercise the right of termination of the contract instead of returning.

In the contractual relationship which is subject of the lawsuit case of adaptation, the balance between obligations is changed as contrary to the rule of honesty which regulated in the 2nd Article of the Turkish Civil Code. The concept of excessive difficulty of performance is the fact that the obligation subject to debt is not impossible but the performance of the debtor becomes extremely difficult due to a reason which the debtor cannot be held responsible.

The contractual relationship which is the subject of the lawsuit cases of adaptation can be the lease contract, the sales contract, the labor contract, the service contract etc. Stating that there may be special cases to be considered in terms of each contract, general principles will be explained below.

In order for a contract to be accepted within the scope of excessive difficulty of performance and to be subject to the lawsuit case of adaptation:

  • The balance between obligations should be extremely changed.
  • The situation which causes excessive change of the balance between obligations should be a situation cannot be foreseen and not expected to be anticipated.
  • The aforementioned situation should not be caused by the fault of the debtor.
  • The obligations should not have been performed yet, or if they were performed, the performance should have been done with reservation.[1]

In an adaptation case to be filed within the scope of excessive difficulty of performance, it may be requested to adapt the contract to changing conditions or to terminate (return from the contract for the instantaneous performance, termination of contract for the continuous performance) the contract.

In the judgement to be made in terms of the lawsuit case of adaptation, the issues such as the qualities of the parties, the place of performance, the time of performance, the obligations that have been undertaken by the parties with the contract will be examined in detail.

In terms of the adaptation case, the rules of honesty in 2th article of the Civil Code[2] will be applied as a general principle when evaluating the issues described above in determining the excessive difficulty of performance.

The established case-law of the Supreme Court of Appeals also states that the rules of honesty will be taken as basis in determining excessive difficulty of performance.[3]

In terms of adaptation, it is aimed to achieve balance between obligations by considering the principle of balancing of sacrificies.  

The Court Which Has Jurisdiction in Terms of Adaptation Cases:

As stated above, the contractual relationship which is the subject of the lawsuit case of adaptation can be the lease contract, the sales contract, the consumer loan contract etc. There will be differences in terms of jurisdiction and territorial jurisdiction in terms of each contract type and the qualifications of the parties. General principles regarding jurisdiction and territorial jurisdiction of lawsuit cases of adaptation will be explained below.

In terms of territorial jurisdiction; the jurisdictional provisions of the Turkish Civil Procedure Code Numbered 6100 will be applied. Pursuant to 6th Article of the Civil Procedure Code, the court having general territorial jurisdiction is the court at the domicile of the defendant or legal person when the lawsuit case filed. The domicile shall be determined in accordance with the provisions of the Turkish Civil Code dated 22/11/2001 and numbered 4721.[4]

In terms of cases arising from the contract; in accordance with 10th Article of the Civil Procedure Code, it is possible to file the case in the court where the characteristic performance must be rendered.

In addition, we would like to state that; the parties may have determined the court(s) having jurisdiction for possible future disputes in the contract. In this situation, unless the parties provide otherwise, pursuant to 17th Article of the Civil Procedure Code[5], the lawsuit case shall be filed only in these courts determined by the contract. The provisions of the mandatory jurisdiction regarding this matter are reserved.

In terms of jurisdiction; in the lawsuit case to be filed, concepts such as the qualifications of the parties and the type of contract become important. Determining the court having jurisdiction is an issue that needs to be evaluated separately for each contract relationship. For example, the court has jurisdiction for the lease agreement is the Civil Court of Peace.[6] The court has jurisdiction of a commercial dispute where the parties are traders will be the Commercial Court of First Instance[7]. If the contract is a consumer loan contract, the court has jurisdiction will be the Consumer Court.[8]

Since the jurisdiction is related to the public order and also one of the procedural requirements, the court will be able to self-examine whether the court has jurisdiction at every stage of the judgement and if it determines that it does not have jurisdiction in terms of the dispute, it will be able to make a decision of non-jurisdiction. [9] For the reasons explained, the determination of the court having jurisdiction of the dispute is important.

Procedure to Follow in terms of Adaptation Cases:

As explained above, the procedural provisions of the Civil Procedure Code will find application in the general procedure to be followed in a civil lawsuit to be filed within the scope of excessive difficulty of performance. Accordingly, in the case of a lease contract which is under the jurisdiction of the Court of Peace, a simple trial procedure will be applied in accordance with 316th Article of the Civil Procedure Code. In a dispute before the Commercial Courts of First Instance regarding a commercial dispute where the parties are traders; simple trial procedure will be applied in commercial cases where amount or value does not exceed one hundred thousand Turkish lira, and written trial procedure will be applied in cases where the amount or value exceeds one hundred thousand Turkish lira,.[10] Again, in terms of procedural requirements, the provisions for applying to mediation are reserved.

Filing Lawsuit Case of Adaptation and General Evaluation in the Context of Covid-19 Pandemic:

The Covid-19 pandemic may have negatively affected the contractual relationship between the parties. In order to evaluate this negative impact within the scope of excessive difficulty of performance and to be subject to an adaptation case, the contractual relationship must become unbearable within the principles explained above.

With the normalization period after the Covid-19 pandemic, a substantial increase is expected for lawsuit cases of contract adaptation. It should be noted that; it is possible to apply discretionary mediation to resolve the dispute and to end the dispute amicably as a result of discretionary mediation without filing a lawsuit.

In a lawsuit case of adaptation to be filed in the context of the Covid-19 pandemic, it is clear that the issues such as the scope of the dispute, the type of contract, the qualifications of the parties, the effects of the Covid-19 pandemic on the contract should be evaluated in detail and the preparation process of the lawsuit case should be carried out meticulously.


[1] UZMAN, ÖZ, Borçlar Hukuku Genel Hükümler, Vot-1, p.562, 563.

[2] “Everyone must abide by the rules of honesty while exercising their rights and fulfilling their debts. Legal order does not protect explicit abuse of a right.” Turkish Civil Code Numbered 4721, article 2.

[3] 13rd Civil Chamber of Supreme Court of Appeals decision numbered 1998/5829 E. 1998/7843 K. dated 15.10.1998

[4] Civil Procedure Code numbered 6100, article 6.

[5] “Merchants or public legal entities may agree on which court or courts have jurisdiction an existing or future dispute arising in between. Unless the parties provide otherwise, action shall be brought only in these courts determined by agreement.” Law No. 6100 on Civil Procedures, article 17.

[6] Civil Procedure Code numbered 6100, article 4.

[7] Turkish Commercial Code numbered 6102, article 5.

[8]  Law on the Protection of Consumers numbered 6502 Article 73/1

[9] İstinaf sistemine Göre Yazılmış Medeni Usul Hukuku, Prof. Dr. Baki Kuru, 1. Edition, Page  97.

[10] Turkish Commercial Code numbered 6102, article 4/2


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