As a result of the social, political and economical conditions in our country, foreign currency has been increasing rapidly in recent years. As such, serious losses arise due to the exchange rate difference of small-large companies or citizens who have debts in foreign currency. In this article, we will talk about the legal ways and measures that the debtor can apply in the face of sudden changes in the exchange rate.
Article 99 of the Code of Obligations No. 6098 regulates that debts, the subject of which is money, will be paid in country currency. However, within the scope of freedom of contract, the contract can be concluded in a way that creates foreign currency debt. When borrowed in foreign currency; If the performance in foreign currency is compulsory, “real foreign currency debt”, if it can be paid in TL apart from the same payment in foreign currency, the existence of “non-real foreign currency debt” will be mentioned.
In the continuation provisions of the same article, it is clearly stated by saying, “..If it is decided to pay in a currency other than the country currency, the debt can also be paid in the country currency at the current rate on the payment date, unless the contract includes the same payment or an expression that means this.”
The main thing in contracts is the principle of commitment to the contract, but the legislator has exceptionally made arrangements for the unbearable deterioration of the balance between acts within the scope of the principle of fairness, and for situations where the expectation of performance from one side would be against the rule of good faith and the basis of the transaction collapsed.
In Article 138 of the Code of Obligations, under the title of excessive difficulty in performance, “..An extraordinary situation that cannot be foreseen and cannot be expected to be foreseen by the parties at the time of conclusion of the contract arises for a reason not arising from the debtor, and the existing facts at the time of the contract are made by the debtor to such an extent that it is contrary to the rules of good faith. and if the debtor has not yet fulfilled his debt or has fulfilled his rights arising from the excessive difficulty of performance, he has the right to request the adaptation of the contract to the new conditions from the judge, and to withdraw from the contract if this is not possible.” In the continuation of the article, it is clearly stated that the provision of this article will also be applied to foreign currency debts.
In order for the contract to be adapted to the changing conditions or terminated, it must be unpredictable for one of the parties to comply with the contract after the change in the contract conditions and this change must be unpredictable. In the face of this regulation, although it is understood that the contract should be adapted to changing conditions in case of sudden changes in the exchange rate, the Supreme Court does not have a definite consensus on this issue.
In the decision numbered E. 2013/11149, K. 2013/26086, T. 28.10.2013 of the 13th Supreme Court “..In an environment where daily increases in foreign currency exchange rates are experienced, the plaintiff initially had the freedom to choose the type of loan with his free will and decided to borrow in foreign currency that is not prohibited. It is understood that he preferred and signed a long-term contract, and the claim that the defendant bank directed the plaintiff could not be proven.” He stated that the unstable situation of the economic balance of our country can be predicted.
The decision of the Supreme Court of Appeals General Assembly dated E. 2014/1614, K. 2014/900, T. 12.11.2014 is a principle decision in this regard. This decision is as follows; “Economic packages have been mandated in Turkey for years, but it has not been able to achieve a stable economy. It is a fact that devaluations are not an unpredictable condition for our country, and that exchange rate policies can change at any time. It is known that devaluation and economic crises do not occur suddenly, but occur after certain economic bottlenecks in the market. Since 1958, devaluations have been announced in our country, currency adjustments have been made frequently, the value of the Turkish currency has been lowered against the dollar and other foreign currencies. The unstable economic situation in our country is a situation that can be predicted by the debtor.” These decisions are no longer enforceable in the face of events.
On the other hand, there are also decisions of the Supreme Court in which it is stated that the changes in the exchange rate are not always predictable in our country. Again, in the decision of the 13th Civil Chamber of the Court of Cassation, numbered E. 2013/16898, K. 2014/18895, T. 13.06.2014, “..At the request, the judge is charged with the duty of intervening in the contract in case of an unpredictable change in the contract terms to the detriment of one party. . The work to be done by the court consists of collecting all the evidence regarding the claims and defenses of the parties, obtaining a report from an expert expert or expert committee, and making a decision according to the result by evaluating all the documents and evidence within the scope of the file. The court clarified that the conditions for the adaptation of the contract should be evaluated in accordance with objective criteria, by saying that it is against the procedure and the law to make a written decision with incomplete examination, without observing the rules and methods explained regarding the adaptation of the contract.”
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