Newsletter-21

264 NEWSLETTER 2016 Another opinion argues that the provisions regulating error can be applied with certain restrictions even for errors in predicting future facts 5 . It must be emphasized that the Swiss Federal Court accepts this latter view. Indeed, the Swiss Federal Court accepted the errors in predicting future facts, provided that they are “ foreseeable. ” 6 In other words, although solely concerning foreseeable facts, the Swiss Federal Court accepted the provisions regulating error as applicable for pre- dictions concerning future facts. According to these decisions, only if both parties to the contract consider the predictions on future facts to be certain, and then they do not occur, the provisions regulating error could be applied. However, in the following decisions of the Swiss Federal Court, in line with the views in doctrine, it was ruled that the error does not necessarily need to be in question for both parties. If one party falls into error – in other words, the predictions about future facts made by one of the parties are not realized, although these are consid- ered certain by the said party – under the condition that the counter party is aware of this issue, it shall be sufficient in terms of provisions regulating error to be applied 7 . Currently, the Court of Cassation does not take a position on this subject. Conclusion Whether the error in predicting future facts constitutes a funda- mental error or not is debated in both Turkish and Swiss doctrines. Although the Swiss Federal Court accepts the implementation of the provisions regulating error under certain restrictions, the position of the Court of Cassation on this subject remains uncertain. 5 Kocayusufpaşaoğlu , p. 403; Fikret Eren, Borçlar Hukuku, Genel Hükümler, Istanbul 2006, p. 353. 6 ATF 109 II 110; ATF 79 II 275. 7 ATF 118 II 297; ATF 117 II 218.