T.C.
Supreme
- law office
Main Number: 2013/14703
Decision No: 2014/5826
K. Date:7.5.2014
The decision on the lease adaptation case with the date and number written above, which was issued from the local court, was appealed by the plaintiff and the defendant within the time limit, and all the papers in the file were read and discussed and considered as necessary.
The case is related to the request for adaptation of rent money. Upon the decision of the court, the determination of the monthly rental price by adapting it as TL 35.122,00 excluding VAT, effective from the day of 01/04/2011, the judgment was appealed separately by the plaintiff and the defendant’s attorney.
1.According to the scope of the file, the evidence collected, the reason on which the decision is based, all the objections of the plaintiff’s attorney, except for the following paragraph of the plaintiff’s attorney, are not in place.
- As for the defendant’s appeal appeals;
In the petition the plaintiff’s attorney in 2011 in the month of March of the monthly rent TL 36.300 immovable, the immovable rented the upstairs of this lease both New around both of precedents at the very top of this, in spite of the defendant’s new term in the rental price 10% excluding VAT 39.830 by a further increase,was billed as 51 TL, Dec apal stated that the balance of the actions in the lease agreement between the parties against the rent money of the rented places has been unbearably deteriorated from the point of view of the plaintiff tenant company and requested that the monthly rent money of the real estate be adapted as TL 26,000 excluding VAT effective from April 1, 2011. The defendant’s attorney argued in his response petition that the plaintiff is a merchant, that there are no economic fluctuations that require the improvement of the contract from the start date of the lease agreement, that the rent increase is determined as the WPI—CPI average, that there is no situation that will cause the collapse of the transaction basis and no criteria that will require adaptation in the case, and that the decision to dismiss the case should be made. With the partial acceptance of the case, the court decided to determine the monthly rental price by adapting it as TL 35,122.00 excluding VAT, effective from the day of 01/04/2011.
In our law, in accordance with the principle of “commitment to the contract (Loyalty to the contract)” and “freedom of contract”, the contract should be applied exactly as at the time of conclusion. The principle of commitment to the contract constitutes the basic principle of contract law as a requirement of the rule of legal security, accuracy and honesty. However, this principle is limited by other principles of private law. The balance that exists between mutual actions when the contract is concluded may be Decayed to an unbearable extent against one of the parties to a great extent with the extraordinary change of conditions afterwards. In this case, there is a contradiction between the principles of contractual commitment and contractual justice, and now strict adherence to this principle, justice, fairness and objective Decency (TMK. md. 4,2) creates a situation contrary to their rules. This antonym in law (Clausula
Rebus Sic Stantibus – Unexpected condition condition- adaptation of the contract to changing conditions) is being tried to be eliminated with the principle. If the conditions that cause the parties to influence their will and conclude the contract have subsequently changed significantly with the occurrence of dramatic, unjust events, the parties can no longer be held bound by that contract. In the face of these changing conditions, M.K. 2. the contract must be re-arranged by taking advantage of the article.
Examples of situations where adherence to the contract cannot be expected, such as war, economic crises that shake the country, excessive increases in the inflation chart, shock devaluation, significant Deceleration of the value of money, to states of emergency that disrupt the balance between the performance of the contract, can be cited as examples.
In the event that the balance between the acts in mutual contracts is turned upside down due to extraordinary changes, making it difficult to fulfill the debt, the “Decadence of the transaction basis” comes to the agenda. In this context, the judge may decide to increase the performance of the debtor for the benefit of the creditor according to the data of the concrete event or to release him from the obligation of the performance in whole or in part for the benefit of the debtor and adapt the contract to the changing conditions by intervening. When adapting the contract to new situations, it is checked whether there are adaptation provisions in the contract first and then in the law in this regard. In the absence of provisions in the contract and the law, it is examined whether the contract should be adapted to the changing conditions and conditions.
As for the principles required for intervention in the contract, the events that occur during the performance of the contract after it is established must be extraordinary and objective. Changing conditions and circumstances should not be foreseeable, expected, usual and accountable for the parties in advance, or events, although foreseeable, their impact on the contract should not be estimated to this extent in terms of scope and form. Since contractual adherence is essential, adaptation should always be considered as an auxiliary solution. The special provisions written in the contract should be interpreted and all objective and subjective conditions and conditions to be determined by the characteristics of the concrete event, such as the rights and benefits they provide to the parties, the effects of economic changes, the qualities of the leased, should be evaluated, if it is decided to adapt, the adjustment gap in the contract, the rules of rights and integrity, accuracy, honesty (TMK. md.4, 2/1) as in the void of the law in the light of TMK.md it must be filled in by the judge using the authority in 1. As a result, any decision to be made should not contradict the principles described above, should be reasoned in a way that includes the grounds and should be in accordance with the supervision of the Court of Cassation.
In the case of the subject of the lawsuit; The plaintiff claims that this rental price is well above both the new rented real estate on the upper floor and its peers in the vicinity, despite this, the defendant has billed the new rental price as 39,830.51 TL excluding VAT by increasing it by another 10%, the rent of the rented place in the face of precedent between the parties in the lease agreement the tenant the balance of the act from the perspective of the plaintiff, noting that the company has been corrupted immovable unbearable in the way of the monthly rent excluding VAT with effect from 1 April 2011 £ 26,000 an adaptation, upon request, the court “… two years after the establishment of the lease agreement between the parties, the party started to ask not to increase the rent to the plaintiff, the defendant accepted this request by the party, this continued until the day of the trial. This issue is the acceptance by the plaintiff party that the balance between the acts has Decayed and the fair and positive contribution made by the defendant party should be counted for the establishment of the balance.
The origin of the discomfort between the parties regarding the rent money is not the Decency of the figure that reaches the date of the lawsuit with increases, but the height of the figure written in the contract at the beginning. Because the plaintiff party wants the rent money, which was agreed as 30,000 TL on the date of the lease agreement, which is 2007, and in the text of the contract, to be reduced to 26,000 TL in 2011. Our court has concluded that it is not possible for a money that will fall below the initial rent money agreed with the free will of the parties to be compatible with the principle of freedom of contract, and our court has concluded that there are conditions for the plaintiff to open the case at hand…” on the basis of this, it was decided to determine the monthly rental price by adapting it as TL 35.122,00 excluding VAT, effective from the day of 01/04/2011. However, since it cannot be said that the adaptation conditions described above have been realized from the point of view of the parties, it is erroneous to decide in writing when the court should decide to reject the claim, the conditions of which have not been realized.
The judgment should be overturned for these reasons.
CONCLUSION: HMK No. 6100 with the acceptance of the appeals of the defendant’s attorney for the reasons described in paragraph (2) above.or temporary 3, added by Law No. 6217.by observing the provision of the article HUMK.nin 428.pursuant to the article, it was unanimously decided on 07.05.2014 that there was no place for the review of other objections according to the VIOLATION of the provision and the reason for the violation, and the refund of the appeal fee received in advance to the appellants upon request.
