In its decision (file no. 2021/3452, decision no. 2021/6001), the 3rd Civil Chamber of the Court of Cassation (Yargıtay) has ruled that the rental fee to be applied during the litigation can be determined by means of an interim measure during an action for adaptation of the rental fee.
The Court of Cassation, noting that, in accordance with the principles of commitment to the contract (pacta sund servanda) and freedom of contract, contracts shall be applied as they have been agreed upon at the time of the conclusion of the contract, qualified hardship as a “collapse of the basis of the transaction”, which is considered as one of the exceptions of the principle of commitment to the contract in accordance with Article 138 of the Turkish Code of Obligations No. 6098. The basis for requesting adaptation from the court due to hardship was based on the good faith principle regulated in Article 2 of the Turkish Civil Code.
The Court of Cassation continued its decision by explaining the nature of the interim measures, which is one of the provisional remedies applied in order to eliminate the inconveniences caused by the difficulty in resolving the disputes in a short time. According to this:
“An interim measure is described in the doctrine “… as a legal protection, which may be broad or limited, temporarily applied to prevent damages that may occur in the legal situation of the plaintiff or the defendant (in relation to the subject of the case) during the proceedings until the final decision.”
The interim measure is a temporary decision and may be changed or removed if the situation and/or conditions change. For this reason, interim measures do not constitute a final judgment, nor do they constitute a presumption of the existence of the right that is the subject to the merits of the dispute.”
Contrary to the opinions in the doctrine alleging that no interim measure can be given to resolve the actual dispute and the merits thereof, and contrary to some decisions of the Court of Cassation before the Civil Procedure Code (“CPC”) became effective, the 3rd Civil Chamber of the Court of Cassation reached a different conclusion with the following reasoning.
“The phrase “provided that it is not in the nature of resolving the main dispute” in the first paragraph of Article 395 of the Draft of the Code of Civil Procedure No. 6100 was removed from the text during the deliberations in the Justice Committee of the GNAT. One may conclude that the purpose of removal of this phrase from the draft text by the legislator was to prevent the grievances that may occur when the plaintiffs are most of the time unable to reach the desired result even though they win the case due to prolonging disputes and litigation, as a consequence of the narrow (strict) interpretation of this principle by the courts.”
According to the Court of Cassation, the purpose of the adaptation request is to keep the contract between the parties alive. If an interim measure is not given in cases filed with a request for adaptation, it may be possible for the party in hardship to default and therefore the contract to be terminated. In this case, the court decision to be given at the end of trial will become dysfunctional.
In light of the above, the 3rd Civil Chamber of the Court of Cassation decided that, as long as the conditions are met, an interim measure may be decided in an action for adaptation of the terms of the lease agreement in compliance with Article 389 of the CPC.
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