Under Turkish Law, the main purpose of each contract is that the parties' fulfilling their mutual obligations. One of the general principles of law and primary rule of contract law is the principle of pacta sunt servanda. The principle intakes that the contract must be fulfilled in accordance with the first conditions as much as possible, even if the conditions existing at the time of its signing have changed in the future. In other words, the contract should be executed in accordance with the conditions in the timeframe and should not contain any changes afterwards. Therefore, the parties are obliged to fully comply with the terms of the contract between them. However, it has been taken into account that the conditions at the time of the establishment of the contract may change during the century in which we live and subsequently the parties may be significantly affected. In this context, a knew principle emerged from the Roman Law that the parties should not be bound by contract if any significant changes acquire in which it has been determined that it will be possible to adapt the contract in accordance with the "clausula rebus sic stantibus
" principle. With the spread of the COVID-19 pandemic, which is first seen in the city of Wuhan in China, to all continents and 127 countries, countries try to prevent by taking extraordinary measures such as curfew, closing of entrances and exits of their country. Within the measures taken as a result of the unexpected spread of the COVID-19 pandemic, various sectors and commercial relations have been damaged by affecting the whole world economy. Although there are approaches regarding the current and future economic implications of the COVID-19 pandemic, the issue of whether this emerging pandemic can be considered as a force majeure in contract law is on the agenda. First of the issues to be mentioned in the related article is the concept and conditions of the principle of adaptation of the contract; subsequently, it will be discussed whether the COVID-19 pandemic can be evaluated within this scope. i. Principle of Adaptation in Contract Law and Requirements
Article 138 of the Turkish Code of Obligations (''TCO'') regulates the adaption of the contracts in the event of hardship. Preamble published by the Legislator for the Article 138 of the TCO explains how the obliteration of the basis of the transaction shall be evaluated. As stated by such, the subject matter shall be evaluated by the principle of the good faith in order to detect whether the basis of the transaction has collapsed or not. According to the related article; ''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 the adaptation of the contract to the new conditions and to revoke the contract if this is not possible. In contracts of continuing obligations debtor shall terminate the contract. This provision also applies to foreign currency debts.''
Adaptation procedure is an application aimed at sustaining the contract in which ending the contract or rescission an agreement is a more severe result than the adaptation. The reason is that, the contract is no longer standing when the obligor revoking the agreement. For the adaptation of the contract, the obligor may request an adaptation from the judge in the first instance.
There are two ways to intervene in an originally established contract. The first is adaptation, and the second is the rescission from the contract. These two options are integrated from the Turkish Civil Code by integrating them from the German Civil Code. As it stated in Article 138 of the TCO that there are three different requirements for the adaptation of the contract. According to the article;
ii. The Definition of Force Majeure and Applicability
- An unexpected event, which was unforeseen and not expected to be foreseen by the Obligor, must occur after the contract was entered into,
- There must be no negligence on the Obligor's side in the occurrence of the unexpected event,
- Performance must have become excessively burdensome for the Obligor because of the unexpected event in light of the Principle of Good Faith,
- Obligor must perform his obligation by reserving the right of hardship or the Obligor must not yet perform the contract.
Although the force majeure is not fully explained in Turkish Law, it is expressed in two ways. One of them is "Subjective Theory (responsible and obligor-based theory)" and the other is the "Objective Theory".
- Subjective Theory; it is a theory based on the responsibleness of the obligor. It is a theory that defines the force majeure according to the fact that it is not possible to prevent damage even if the utmost care is given according to the conditions.
- Objective Theory; This means events which the obligor is not obliged to take into account during the course of ordinary life, such as war, economic crisis, high devaluation. The essential criterion here is whether the parties can be expected to foresee the relevant event, considering all possible risk and assumptions or not. The change must have effect on the essential points of the contract and disturb the equilibrium of risks and benefits in the period between the date of the performance of the contract and when the contract was entered into.
Force majeure is often confused with contingency. There are some differences between them. First of all, force majeure refers to a situation with greater severity and intensity than the contingency. There is absolute inevitability. Force majeure, in an external event (foreign element) to the person and activity; The contingency, on the other hand, refers to an internal problem between the operation and activity procedures. Each case must be examined separately. It is expressed and perceived as one of the reasons that constitute the unthinkable result. Therefore, the force majeure appears as a reason with more obvious consequences in the context of liability law.