THE COURT OF APPEALS’ DECISION TO SETTLE THE DISPUTE ON THE ISSUANCE OF PRECAUTIONARY INJUNCTION IN ADAPTATION CASES

T.R.

THE COURT OF APPEALS
3RD CIVIL DEPARTMENT
PRESIDENCE

CASE NO: 2021/3452

DECISION NO: 2021/6001

Upon the application of the Board of Presidents of the Bursa Regional Court of Justice: It was reported that there was a conflict between the file numbered 2020/1596 – decision numbered 2020/1499 of the 4th Civil Chamber of the Bursa Regional Court of Justice and the final decisions numbered 2020/2164 – decision numbered 2021/50 of the 15th Civil Chamber of the Ankara Regional Court of Justice, due to differences of opinion on whether an interim injunction decision can be given in adaptation cases, and it was requested that the conflicts be resolved within the scope of Article 35/1-3 titled “Duties of the Board of Presidents” of the Law No. 5235 on the Establishment, Duties and Powers of the First Instance Trials of the Judiciary and the Regional Courts of Justice.

“As is known; In our law, the principles of contractual commitment (Ahde Vefa-Pactu Sund Servanda) and freedom of contract have been accepted. According to these principles, the contract should be implemented exactly as it was when it was made. In other words, even if the terms of the contract have become more difficult for the debtor later and the balance of obligations has changed due to subsequent events, the debtor must perform the obligation in the contract exactly as it was. The principle of contractual commitment constitutes the fundamental principle of contract law as a requirement of the rule of legal security, truthfulness and honesty. However, in the practice that developed with the Court of Cassation precedents in the period before the TCC No. 6098, this principle was limited by other principles of private law. In Turkish law, inspired by Articles 2 and 4 of the TCC, it has long been adopted that adaptation cases can be filed by applying both the principle of adaptation of the contract to changing conditions (Clausula Rebus Sic Stantibus) and the Collapse of the Basis of Transaction Theory.

The adaptation case, which was adopted by the Supreme Court and constitutes an exception to the principle of commitment to the contract, was also adopted during the enactment of the TCC No. 6098 and was regulated under the title of “Excessive Difficulty of Performance” in Article 138 of Law No. 6098. “If an extraordinary situation that was not foreseen by the parties at the time the contract was made and was not expected to be foreseen arises for a reason not caused by the debtor and changes the existing facts at the time the contract was made to the detriment of the debtor to the extent that it would be against the rules of honesty to request performance from him, and the debtor has not yet performed his debt or has performed it by reserving his rights arising from the excessive difficulty of performance, the debtor has the right to request the judge to adapt the contract to the new conditions, or if this is not possible, to withdraw from the contract. In continuous performance contracts, the debtor, as a rule, uses the right of termination instead of the right of withdrawal. The provision of this article is also applied to foreign currency debts.” In the justification of the relevant article, it is stated that “this new regulation is related to the “collapse of the basis of the transaction”, which is accepted as one of the exceptions to the principle of commitment to the contract (pacta sunt servanda) in doctrine and practice. The basis of the adaptation request based on extreme difficulty of performance, which is different from the concept of impossibility, is the rules of honesty stipulated in Article 2 of the Turkish Civil Code. However, the adaptation of the contract to changing conditions or the use of the right of withdrawal depends on the occurrence of the following four conditions together.

a) An extraordinary situation that was not foreseen by the parties and was not expected to be foreseen at the time the contract was made must have occurred.
b) This situation must not have been caused by the debtor.
c) This situation must have changed the existing facts at the time the contract was made to the detriment of the debtor to the extent that it would be against the rules of honesty to request performance from him.
d) The debtor must not have yet performed his debt or must have performed it by reserving his rights arising from the excessive difficulty of performance.
According to the article, if all the conditions for adaptation have been met, the debtor may request the judge to adapt the contract to the new conditions. If this is not possible, the debtor may renounce the contract, and in continuous performance contracts, as a rule, he may exercise his right of termination, and the adaptation case accepted in the practice of the Supreme Court of Appeals before the TCC has been turned into a law article.

As is known; in cases where a person can create a new legal relationship with a unilateral declaration of will, the existence of constitutive (constructive-innovative) rights is mentioned. As a rule, a legal consequence arises when the owner of the constructive right exercises this right unilaterally. However, in some constructive rights, a legal consequence does not arise automatically when the owner of the constructive right exercises this right unilaterally. These constructive rights must definitely be exercised through the court. If the court decides to accept the constructive case, this decision is constructive. Because a new legal situation is created with this acceptance decision. In this case, the case filed can be called a constructive case and based on this constructive right, it requests the court to decide to change or remove a legal situation or to create a new legal situation. In case of acceptance of constructive cases, the constructive decisions given are, as a rule, effective for the future. In other words, the innovative effect that occurs with the acquisition of this right is, as a rule, for the future and does not affect the past.

One of the reflections of the complexity of social life and human relations in the field of law is that it becomes difficult to resolve disputes in a short time. In order to eliminate these drawbacks, a need has arisen to temporarily secure the legal interests of individuals without waiting for the end of the dispute and until the end of the dispute. This need has brought us temporary legal protection methods. Precautionary measures are the most important of temporary legal protections.

Precautionary measures are defined in the doctrine as “…a temporary, broad or limited legal protection against damages that may occur in the legal situation of the plaintiff or the defendant (related to the subject matter of the case) throughout the trial that continues until the final verdict.” (Civil Procedure Law 12th Edition, Chapter 714-Prof. Dr. Hakan Pekcanıtez, Prof. Dr. Oğuz Atalay, Prof. Dr. Muhammet Özekes) As can be understood from the aforementioned definition, in addition to its other functions, the precautionary measure is a temporary legal protection due to its nature of preventing new disputes from arising on the subject matter of the case during the continuation of the case and until the finalization of the verdict. The purpose of the precautionary measure regulated in Articles 389 and ff. of the Civil Procedure Code No. 6100 should not be to punish or suppress the other party, but to serve the protection of rights. These are temporary legal protections that are used to eliminate the inconveniences arising from the prolongation of the case for the parties until the verdict on the merits and to provide temporary legal protection, thus ensuring that the plaintiff will obtain the subject of the case in case he wins the case he has filed, and to help the contract between the parties to survive the case. If there is a change in the conditions after the decision on the precautionary measure is given, the precautionary measure decision can be lifted upon request or reviewed and amended if necessary in accordance with these changing conditions.

There is no need for full proof in the provisional injunction proceedings. It is sufficient for the court to be convinced that the person requesting the provisional injunction has a right, in other words, to see that his rightfulness is highly probable (Arens/1.üke. 19994: 482; Musielak. 1995; 396: Thomas/Putzo. 1995: 1416; Kuru-Usul. Vol. III. 1991: 3075; Bilge/Önen, 1978: 374: Ansay. 1960: 197: Yılmaz, p. 51).
The court’s review should be limited to the opinion that it has that will allow it to assess whether the provisional injunction decision is worthy of acceptance. Since the judge has not ruled on the merits of the case, he cannot be rejected for this reason if he expresses his opinion limited to the provisional injunction decision.
The provisional injunction decision is a temporary decision and can be changed or lifted if the situation and conditions change. Therefore, provisional injunction decisions do not constitute a final judgment and do not constitute a presumption on the existence of the right that is the subject of the main lawsuit. Accordingly, the decision to accept or reject the request for provisional injunction does not require the acceptance or rejection of the main lawsuit.
It is accepted that there are three types of precautionary measures that are temporary legal protection measures. These are “securative”, “performance” and “regulatory” precautionary measures. Security measures are the basic form of precautionary measures. Any measure that will eliminate the inconvenience or prevent the damage, such as preserving the goods or rights subject to the measure or entrusting them to a trustee or doing or not doing something, can be decided.
Measures for performance purposes are intended to temporarily fulfill demands such as the temporary performance of the right in dispute, the order for a precautionary measure to be given by the court, or the performance or non-performance of a task.

The regulatory measures aim to regulate the disputed legal relationship temporarily. Here, rather than fulfilling a future act, the issue is to make a temporary regulation to preserve the legal peace regarding the existing legal relationship. Indeed, if the adaptation request of the party applying to the court based on Article 138 of the Turkish Code of Obligations is not accepted, the consequences of rescission/termination of the contract will be in question. Therefore, the measure to be given to protect the contractual relationship in the trial process where it will be determined whether the contractual relationship will end will be a regulatory measure.

Although it has been accepted in the doctrine and in some Court of Cassation decisions before the HMK that an interim measure decision cannot be given regarding the essence of the dispute that will resolve the main dispute; the phrase “provided that it is not of a nature to resolve the main dispute” in the first paragraph of Article 395 of the Draft Code of Civil Procedure No. 6100 was removed from the text of the draft article of the HMK during the discussions in the TBMM Justice Committee. It can be concluded that the legislator’s purpose in removing this phrase from the draft text is to prevent the grievances that may arise due to the fact that the plaintiff often wins the case but cannot reach the desired result with the case due to the long time it takes for the disputes to be concluded as a result of the narrow (strict) interpretation of this principle.

In light of the above explanations, when the concrete case is examined; In the lawsuit for adaptation of the rental fee due to the direct impact of the Covid-19 epidemic (pandemic) disease or the adverse impact of the restrictive and prohibitive administrative measures aimed at preventing the epidemic, it is requested that the lease contract terms (price) be adapted to the changing conditions due to the fact that the performance of the obligation has become unbearable for one of the parties after the epidemic that occurred after the signing of the contract and affected a large part of the society and disrupted the social and economic balance of the parties. Here, the purpose of the adaptation request is not to terminate or rescind the contract, but to keep the contract alive. Adaptation lawsuits are constructive lawsuits and produce results with the court decision given as a result of the trial. If the process of the lawsuit with an adaptation request filed due to the pandemic is prolonged, its effects will be further aggravated. By filing a lawsuit, the injunction decisions to be given at the beginning; It goes without saying that in cases such as the course of the pandemic, the effects on the sector in which the tenants who are negatively affected due to the relaxation and tightening of the precautionary measures taken, the abuse of the tenant in paying the discounted rent and the tenant’s actions aimed at prolonging the trial, the court can always make changes upon request and that each concrete file should be evaluated on a case-by-case basis, taking into account the parties’ ability to collect their receivables with interest as a result of the case. In the event that no precautionary measure is given; due to the economic hardship caused by the pandemic due to direct or preventive administrative decisions, termination of the contract and eviction due to default becomes possible in accordance with Article 315 of the Turkish Code of Obligations. The aim in adaptation cases is to maintain the contract between the parties and to re-establish justice between the obligations that existed at the beginning in the face of extraordinary circumstances. In cases filed with a request for adaptation, when an interim measure decision is not given, it may not be possible to maintain the lease contract until the end of the case in some cases. What is expected from an adaptation case is to maintain the contract by changing the conditions despite the extraordinary circumstances. In the case filed, a precautionary measure may be issued in order to eliminate the inconveniences arising from the prolongation of the case for the parties until the verdict on the merits and to provide temporary legal protection, thus ensuring that the plaintiff will obtain the subject matter of the case in case he/she wins the case he/she has filed, and to prevent victimization. Otherwise, tenants of businesses in sectors whose activities have been prohibited or restricted, especially due to the direct impact of the pandemic or administrative measures aimed at preventing the pandemic, may experience extreme performance difficulties and be unable to pay their rents due to the decrease in their business turnover, and may be evicted from the leased property by terminating the contract due to default until the conclusion of the adaptation case, and the purpose of keeping the contract alive aimed at the adaptation case will not be achieved, and the adaptation decision to be given as a result of the trial will become dysfunctional in some way.

In light of these explanations, since the issuance of an interim injunction in the case filed regarding the adaptation of the lease contract terms (rent fee) due to the epidemic (pandemic) disease is in accordance with the provisions of Article 389 et seq. of the Code of Civil Procedure, the decision of the Ankara 15th Regional Court of Justice regarding the rejection of the appeal against the decision to reject the interim injunction request on the grounds that an interim injunction decision cannot be issued in a manner that would resolve the merits of the case and the dispute in the case of adaptation of the rent fee is not appropriate.”