NEWSLETTER-2020-metin

117 LAW OF OBLIGATIONS The Court stated that pandemic could not be predicted by the par- ties; the process of an epidemic disease is an extraordinary situation under Article 138 of the TCO. The decision also states that all con- tracts cannot be intervened in a predetermined way in the face of this extraordinary situation, since the effects of the measures taken within the scope of the pandemic differ in each industry and workplaces. The Court also emphasized that the effects of the pandemic, and the mea- sures on the lessee, itself, should be considered for adaptation. The Court stated that the lessee’s business continued with take-out services within the rented property that was operated as a restaurant, but it also considered that the process and the measures taken could have certain effects on the business of the plaintiff. The Debtor Should Not Cause the Change The party requesting adaptation due to the extraordinary situation emerged after the conclusion of the contract by the parties should not have caused the situation 3 . Although it is not clearly stated in the Deci- sion, it is clear that the plaintiff has no fault in the COVID-19 pan- demic. In addition, within the framework of the events and change, the debtor’s performance should not be expected according to good faith. In accordance with good faith, the debtor must act with care after the emergence of the extraordinary situation 4 . Although the Court did not make a clear distinction as to whether this condition was met in this case, the plaintiff’s continuing business with the take-away service may be interpreted as an expression that the plaintiff acted with care after the emergence of the extraordinary situation. The Amendment Changes an Existing Condition at the Time of the Contract against the Debtor to the Extent that the Demand for Performance is in Violation of Good Faith Another condition addressed by Article 138 of the TCO is that an existing condition at the time of the contract against the aggrieved party’s interests have changed to the extent that demanding perfor- 3 Decision of the 6th CC of the Court of Cassation, No. 2015/4013 E. 2015/6417 K. 25.06.2015, “… the Plaintiff who requests adaptation should not cause the emer - gence of the exceptional circumstances and conditions due to his own fault…” 4 Turkish Civil Code No. 4721 (OG, No. 24607, 08.12.2011).