English
Everyone must have a contract in which they are already or already a party. In these agreements to which it is a party, it may sometimes be credited and sometimes indebted. In case of being a borrower, sometimes there may be significant increases in the amount of debt that must be fulfilled under the contract. Such situations are quite common in long-term or prolonged contracts, or if the contractual debt is denominated in foreign currency – as in the following days. In this case, the debt of the borrower in this case will be significantly increased. So, is there any possibility that the borrower has in the face of this increase in the amount of debt without any influence of the borrower?
The new Code of Obligations before the new Turkish Code of Obligations (TBK) no. 6098, which entered into force on 1 July 2012, did not contain any special provisions on this matter. Regardless of the type of contract concluded by the parties (eg sales contract), if there was a provision in the law applicable to this condition, the provision was applied. In addition, if the parties foresee such cases in advance, the gold value record (the amount of the debt is determined as a certain amount – for example 1 ingot – gold value), the foreign currency (foreign exchange) value record (the amount of the debt is determined according to a solid and stable foreign currency). ).
Although the above-mentioned issues are valid for the period no. 6098, which came into force on 1 July 2012, a new provision was also introduced in the new TBK regarding the serious increase problems in the amount of debt that were raised in the first paragraph. According to the provisions of TBK 138 entitled “Difficulty of Execution if;
Olağanüstü An extraordinary situation which is not foreseen by the parties at the time the contract is concluded and which is not expected to be foreseen occurs due to a reason not arising from the debtor and at the time of the contract, the existing facts change the fact that the request of the execution is contrary to the rules of honesty against the debtor and the debtor has not yet executed the debt. the debtor has the right to ask the judge to adapt the contract to the new conditions and to return from the contract if this is not possible. In perpetual contracts, the borrower uses the right of termination instead of the right to return (f.1). This provision also applies to foreign currency debts (f.2). ”
According to the provision, the debtor who has a significant increase in the amount of debt that he will perform without his influence, that is, in short, has the right to ask the judge to adapt the contract if this is not possible, and to terminate the contract in permanent acts. However, the debtor does not have unlimited authority to exercise this right. As can be understood from the provision of the article, the borrower may exercise this right in the presence of certain conditions:
1- An extraordinary situation, which is not foreseen by the parties at the time of the conclusion of the contract and which is not expected to be foreseen, must have emerged afterwards. This is also called km collapse of the transaction base..
2- This should not have been caused by the borrower.
3- This situation should have changed the facts that existed at the time of the contract against the debtor in such a way that it is contrary to the rules of honesty.
4- The debtor must have not yet fulfilled his debt or exercised his rights without prejudice to the excessive difficulty of the performance.
If these four conditions are met, then the borrower, whose performance becomes extremely difficult, may request the judge to adapt the contract. It is important to note that the borrower does not have the right to return or terminate in the event of these conditions. First of all, he has to apply to the court and request the adaptation of the contract. Again, it is important to note that the borrower cannot request the adaptation of the contract by making an out-of-court statement, and he must apply to the court. The reason why it is obligatory to apply to the court first and to request an adaptation is to seek the supervision of the judge in this matter. The judge shall carry out the adaptation, if possible, by applying the measures he appreciates. If the adaptation is not possible, this time the borrower, returning from the contract; use the right of termination in permanent contracts.
However, the problem of excessive performance is a matter that needs to be examined separately and carefully in terms of each concrete event, as it has important consequences on contracts and even terminates the contractual relationship, if necessary. For this reason, the Court of Cassation is in favor of keeping the provisions of the Convention to the end; therefore, the provisions of the contract between the parties should first be applied and the institution of excessive performance difficulties can only be applied in exceptional cases where honesty clearly requires. A Supreme Court decision on the matter is as follows:…… It is undisputed that the plaintiffs used 120-month housing loans from the respondent bank on 07.06.2007 with a monthly installment of 1,158,73 Swiss francs amounting to CHF 120,000 and the first installment started on 07.07.2007. They claimed that the franc was over-valued against the TL and thus the base of the transaction collapsed. It should be noted immediately that adherence to the contract drawn up between the parties is essential, and the adaptation of the contract is an exceptional case which should be resorted to in case of the existence of adaptation conditions. Above all, it is imperative that unexpected situations occur after the signing of the contract, that the contract is long-term, that the unexpected situations are valid, objective and unpredictable for all, that changing conditions make the contract unbearable and that the basis of the transaction collapses. In this case, it is understood that the plaintiff used credit in foreign currency instead of TL while he had the freedom to choose, in other words, he determined the type of credit with his free will. On the other hand, the fact that economic crises occur in our country from time to time and that foreign currency borrowing carries a risk in this context is also known by the majority of the society. The plaintiff used credit in foreign currency, although he was able to foresee this risk. Moreover, the present case was opened three years after the date of the loan repayment, in which case the plaintiffs must accept the agreement. When all these issues are considered together, it is understood that there are no adaptation conditions in the subject matter dava (YARGITAY 13.HD. E: 2014/13642, K: 2015/7195, T: 10.03.2015) ”.
In the aforementioned decision, the Court of Cassation accepted that the borrower could choose the debt in TL while choosing the currency in foreign currency.
In order to request the adaptation of the contract due to excessive performance difficulties, and in the event that the adaptation is not possible, the four conditions mentioned above must be fulfilled in order to proceed with the revocation or termination of the contracts. However, the Court of Cassation is very sensitive to this issue and expects the local courts to act in a narrow way by interpreting these conditions. In this case, especially in terms of foreign exchange or long-term contracts should be treated with extreme caution, such a contract is established or after the excessive if
