Coronavirus (covid-19) which has first seen in Wuhan, the Republic of China at the last of December, was included in the 'Pandemic' category by the World Health Organization on March 11, 2020. In Turkey, the first case was detected on March 11, 2020. As a precaution, the activities of places such as cinemas, cafes, sports centers, concert halls, where the people are very close, on the grounds that the transmission of the disease would increase, temporarily suspended with a circular issued by the Ministry of Interior.
These measures taken within scope of struggling the covid-19 have brought many social and economic consequences. One of the result is rental contracts.
Because of the freedom of form principle based on contracts in Turkish law, the parties can conclude contracts with their free will in a way that does not contradict the mandatory provisions of the law, public order and general morality. There are provisions titled 'force majeure' in commercial rental contracts and the parties have the right to terminate the contract unilaterally.
Force majeure; It is defined as events that are impossible to foresee and resist such as death, fire, flood, earthquake, epidemic that occur outside the activities of the debtor that prevent the fulfilment of the commitment and responsibility. The existence of the force majeure should be evaluated separately, according to the concrete case.
If there are force majeure provisions in the lease contracts, the parties have the right to terminate the contract unilaterally based on the provisions of this contract. In case of disagreement, the party based on the force majeure provision; (coronavirus in today's conditions) will be able to demand the termination of the contract by supporting with a happening that this cause has emerged as an unpredictable factor, and the damages it has incurred under the lease contract.
'Hardship' is regulated in TBK 138. According to the article: “If an extraordinary situation that was not foreseen and expected to be anticipated by the parties at the time of conclusion of the contract occurs for a reason not arising from the debtor and against the debtor, the debtor has the right to request the judge to adopt the contract to the new conditions and, if this is not possible, to withdrawal from the contract. In contract of continuous performance, the debtor uses the right of termination instead of the right of return as a rule."
The basis of requesting adaptation based on hardship is based on the rule of honesty. However, some conditions must be met:
· During the execution of the contract, an extraordinary situation that was not foreseen or expected by the parties should have occurred.
· This situation must not have been caused by the debtor.
· This situation must have changed the existing facts against the debtor at the time of the conclusion of the contract, in violation of the rule of honesty.
· The debtor must have not fulfilled her debt yet or have performed it by reserving her rights arising from excessive difficulty in performance.
If all these conditions are met, the borrower may ask the judge to adopt the contract to the new conditions.
In adapting contracts, it must be proven that the debt payments are dependent on the situation caused by the coronavirus. The right to request the adaptation of the contract can only be exercised through litigation by applying to the court. The tenant will request an adaptation from the judge. However, if the contract cannot be adapted, the termination will occur. The judge investigates the case ex officio. If possible, the adaptation freely determines the method and amount by considering the balance of interest of the parties. Here, an investigation will be conducted by the judge under the "prohibition of abuse of right" and arbitrary requests will be rejected.