NEWSLETTER-2020-metin

118 NEWSLETTER 2020 mance of the contract is contrary to good faith 5 . The adaptation of the contract should be evaluated considering good faith. In the precedent cases of the Court of Cassation, it is determined that the fact that the performance of the contract became unbearable for the aggrieved party is a condition for adaptation of the contract 6 . Furthermore, for the adaptation of a contract, the extraordinary condition should clearly and severely remove the balance of the obligations in favor of one of the parties. If one of the parties should bear the risk of the change of conditions, then there will be no adaptation 7 . Here, the Court held that neither of the parties caused this unfa- vorable condition, and that the contract shall be subjected to adapta- tion to distribute the burden to both of the parties. The Debtor Does Not Perform or Performs by Reserving Its Rights Arising From Hardship In line with Article 138 of the TCO, a debtor should either not perform the contract, or should perform, by reserving its rights as to hardship. Article 138 of the TCO allows adaptation retroactively for an obligation that is already performed. However, performance should be made by reserving the rights arising from hardship. Therefore, the view arguing that the lawsuit for adaptation of the lease price may be filed proactively would not be significant by means of reserving the rights for adaptation 8 . Another demand of the plaintiff that is evaluated in the Decision is an interim measure for the payment of the monthly amount of TRY 11,500 starting from 01.05.2020, and continues so long as the effects of the COVID-19 pandemic continue. The Court determined that the conditions of hardship are present. It is not understood from the De- cision whether or not the lessee paid the previous rents and, if so, whether or not there is a reservation in this respect. 5 Baysal , p. 286. 6 Decision of the 13th CC of the Court of Cassation, No. 1995/145 E. 1995/3339 K. 06.04.1995; Decision of the 13th CC of the Court of Cassation No. 2005/1874 E. 2005/9749 K. 09.06.2005. 7 Baysal , p. 291. 8 Gümüş, Prof. Dr. Mustafa Alper : Kira Sözleşmesi, 2nd ed., İstanbul 2012.