All countries have been taken many measures against COVID-19 pandemic occurred in December 2019, in Wuhan, China and spread all over the world, within the scope of combating the virus; and these measures are still ongoing. The priority of countries in this regard is to reduce the distance between people and provide isolation by increasing the social distance. As is known, many measures have also been taken in our country within the scope of the coronavirus. Various practices have been applied in this direction and these measures are: curfew restrictions, working from home for some industries, and closing workplaces. Unfortunately, no one can able to foresee when to return the normal. Many industries have been greatly affected by an outbreak of this size and the constraints brought by the outbreak, and also have been suffered a serious loss of income, in fact, some industries’ income is at a complete standstill.
As a result of the economic difficulty that comes with the COVID-19 outbreak, many cafe and restaurant owners, which had to operate limited, have been dealing with hardship by the current lease contracts. In this regard, we can talk about Article 138 of the Turkish Code of Obligations numbered 6098. This article is regulated as, “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 not due to the debtor and changes the existing facts at the time against the debtor in such a way as to violate the rules of honesty, If the debtor has not yet fulfilled his / her obligations arising from the excessive difficulty of the performance, the debtor shall have the right to request from the judge to adapt the contract to the new coronavirus conditions. In contracts of continuing obligations debtor shall terminate the contract.” Thus, the tenant can request for the request from the judge to the adaptation of the contract to the new conditions if the conditions for the adaptation are met. About this request, the 4th Civil Chamber of the Regional Courts of Justice of Bursa has decided in its decision numbered 2021/58 E. and decision numbered 2021/75 K. dated 21/01/2021 as:
“In general, the principle ‘Pacta Sunt Servanda’ applies to agreements; however, it is possible for the judge to intervene in the contract and adapt it to new conditions since the strict implementation of the principle of commitment to the contract will put the debtor in a more difficulty and will be unfair, in case of an extraordinary situation that could not be expected by the parties during the conclusion of the contract.”
With the request to adapt the contract according to conditions of the outbreak, an injunction can be requested about the dispute subject to the contract, in case of concern that obtaining the right will be significantly difficult or completely impossible. Since the tenant will not be able to pay the current rent, in case the measure is not requested and it may be evacuated due to default, Requesting adaptation after this process will cause loss of right. The party requesting the measure must submit evidence to prove approximately the justification of the request in court. It should be emphasized that there is no need to prove the events known to everyone, and the degree of exposure of every workplace during the outbreak will not lead to a decision of caution. The party requesting this measure will need to show the reason on which it is based, in other words, in this case, they need to attached documents showing the changed financial situation with the outbreak.
Regarding the duration of the injunction request to be requested with the adaptation, in the decision of the 4th Civil Chamber of the Regional Courts of Justice of Bursa decision, numbered 2021/58 E. and decision numbered 2021/75 K. dated 21/01/2021, it is decided as:
“The COVID-19 outbreak is a temporary period, and the measures to be taken for this outbreak should only cover this period. When the effects of the outbreak completely disappear and the business situation of the debtor returns to its pre-outbreak state, the request for injunction and adaptation should be reverted. According to Article 396/1 of the Code of Civil Procedure, if it is fixed that the conditions have changed, it can be decided to change or cancel the injunction request, without seeking a deposit.” In other words, the request for an injunction should not be lifted when the outbreak effects are over; but should be lifted when the debtor’s business situation turns to normal.
 The 4th Civil Chamber of the Regional Courts of Justice of Bursa, decision, numbered 2021/58 E. and decision numbered 2021/75 K.
FOR MORE DETAILS , CONSULT THE ARTICLE’s WRITER
Yalçın & Toygar Law Office
Kabatas-Setustu, Inebolu Sok. No:25 Ada Apt. D.11 34427 Istanbul
+90 212 293 09 09
Email : email@example.com