Newsletter-21

263 LAW OF OBLIGATIONS As an example, when a person leases an apartment in anticipation of being appointed to a certain province, and later finds out that he/ she was actually appointed to another province, he/she may cancel the lease agreement as per the provisions regulating error – insofar as the above conditions are fulfilled. The fact causing the error may be related to the past or present. It is debated, however, whether the error in predicting future facts con- stitutes a fundamental error or not. Following the example, above, the answer to the question as to whether a later change of the province that the person has been appointed to constitutes an error, depends on the outcome of this discussion. Below, the points of view in the doctrine on the above discussion will be addressed. Different Opinions on the Predictions of Future Facts Constituting Fundamental Error The majority opinion on this subject in both Swiss Law 2 and Turkish Law 3 argues that the provisions regulating error cannot be applied in the case of errors in predictions concerning future facts. In this case, the effect of later changes to a contract after the conclusion thereof relates to the theory of improvisation, and Article 138 of the TCO regulating hardship shall be applied 4 . In this case, there is no dif- ference between the facts that influence the will to enter into a contract and the current facts at the time the contract is concluded. 2 Please see: Kocayusufpaşaoğlu Necip, Borçlar Hukukuna Giriş, Hukukî İşlem, Sözleşme, Istanbul 2010, p. 403, fn. 32. 3 As an example, Oğuzman/Öz, p. 105. 4 According to this provision; “If an extraordinary situation ocurs, which was not predicted and also unpredictable by the parties when concluding a contract, and is not related to the debtor and changes the circumstances of the contract to the detriment of debtor in a way that performance of such contract could not be ex- pected from the debtor according to good faith principles and if the debtor has not yet fulfilled his obligation or fulfilled it by keeping all his rights reserved arising from hardship, shall have the right to demand adaptation of the contract from the court and if not possible, he/she shall have the right revoke the contract. For long term contracts, the debtor shall use his/her right of termination instead of revoca- tion. This provision shall also apply to foreign currency debts.”