Adaptation in Lease Agreements


Adaptation of Lease Agreements Due to Unexpected Circumstances



It is known that the Covid-19 Pandemic, which affects our lives in many ways, also affects/will affect different sectors. In this respect, legal affairs, transactions and relations should also be evaluated. In this study, the subject of Adaptation in Rental Agreements Due to Unexpected Conditions under the conditions of the Covid-19 Pandemic.


Rental Agreements are regulated between Articles 299 and 378 of the Turkish Code of Obligations (“TCO”). Lease agreement with its legal definition; These are the contracts in which the lessor undertakes to leave the use of a thing or to benefit from it together with the use to the lessee, and the lessee undertakes to pay the agreed rent in return. The concept of adaptation, on the other hand, is regulated in Article 138 of the TCO, specific to the collapse of the transaction basis, and has its own elements. With its short and concise definition, adaptation can be defined as “the use of the innovative right by the aggrieved party after the requirements of the use of the innovative right have been fulfilled and the negotiation has been re-negotiated and no results have been obtained”[1]. Although there are no special adaptation provisions regarding the Rental Agreements, in cases where adaptations exist, the parties can apply to the provisions of Article 138 of the TCO.


First of all, the adaptation conditions within the framework of Article 138 of the TCO should be examined in the light of the doctrine and the Supreme Court Jurisprudence. The doctrine sought the collapse of the transaction basis and the existence of the following conditions for adaptation: a) A fundamental change that occurred after the conclusion of the contract in the circumstances forming the transaction basis; b) This change was not foreseen by the contracting parties; c) If there is a contractual or legal risk distribution provision, performance cannot be expected according to these provisions, or according to the fair risk distribution approach according to the characteristics of the concrete case[2].


The elements sought for adaptation in a Supreme Court Jurisprudence are; a) An extraordinary situation that was not foreseen or expected to be foreseen by the parties at the time of the contract, b) This situation did not originate from the debtor, c) This situation changed the existing facts at the time of the conclusion of the contract to the detriment of the debtor to the extent that it would be contrary to the rules of good faith. , d) The debtor has not yet fulfilled its debt or has performed it without prejudice to its rights arising from excessive difficulty in performance[3]; and criteria for adaptation were determined.


These elements and criteria have been included in many doctrinal views and Supreme Court Jurisprudence and have formed the general framework for adaptation. It should be noted that Rental Agreements; It should be examined in terms of the conditions of the concrete case and the realization of the conditions foreseen in both the doctrine and the case law of the Court of Cassation should be evaluated. As a matter of fact, it is not possible to say that every contract dealing with the rental relationship will be subject to adaptation due to the Covid-19 Pandemic. For this reason, the conditions of the concrete case are important in terms of adaptation.


As a result, the party who thinks that the adaptation conditions occur within the scope of the Rental Agreement and concrete conditions; Pursuant to TCO 138, he has the right to ask the judge to adapt the contract to new conditions, but he also has the right to withdraw from the contract if adaptation is not possible. It should not be forgotten that the court in charge of adaptation cases is the Civil Courts of Peace pursuant to Article 4/1-a of the Code of Civil Procedure. Finally, we would like to point out that there are different types of lawsuits regarding the determination of the rental price and the adaptation of the rental price, and the party requesting adaptation should pay attention to this distinction.


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