The Covid-19, which arise in Wuhan, China, continues to pose a risk to humanity, getting red alert on the world. Corona Virus Covid-19, which has resonated around the world, has long alarmed many countries; The importance taken in the world’s states and the remedies considered are inadequate; it causes great destruction both economically and socially.
As the epidemic spreads to the global world, it is undoubtedly brought with it a number of major problems, including economic, social and psychological. The effects of this virus outbreak are clearly seen in the economic dimension as well as the current health problems in humans. It is an indisputable fact that the world and Turkish economy is the area where the effects of the virus are felt the most. In this context, the effects of the Virus should be evaluated within the scope of the consequences it can have on lease agreements (“Lease Agreements”) specifically for commercial purposes.
Minister of Industry and TechnologyMustafa Varank;” Technopark management companies have been instructed not to charge rent for 2 months from incubators and commercial enterprises such as restaurants and cafes located in technoparks; In addition, he stated that companies working in the field of Research Development and Design in these campuses have facilitated the plans to postpone and pay rent payments for 2 months. In addition to this situation, the Ministry of Environment and Urbanization; sent a circular to all municipalities. In this Circular;
“The provincial private administrations, municipalities and their subsidiaries and the local administration associations to which they are a member and more than half of their capital are directly or indirectly owned by their companies, which they own together or separately, and are subject to rent within the framework of the State Procurement Law No. 2886, municipal law no. 5393, metropolitan municipality law no. 5216 and other related legislation; Since the workplaces that have been temporarily discontinued due to the measures taken by public institutions cannot be used, the rent price is not accrued during the period of cessation of activities, as well as the extension of the contract periods for these periods, although it is not among the workplaces whose activities have been temporarily discontinued, the changing conditions in the payment of the debts arising from the lease agreement of the businesses affected economically due to the coronavirus pandemic are observed. it has been deemed appropriate to evaluate the deferral of receivables by the relevant administrations.”
Although certain considerations are being taken by the government regarding the economic situation of the country’s citizens, it is unclear how long this situation will last. We hope that the virus crisis will be resolved as soon as possible. Since it is not known how long this situation will be concluded, the measures taken within the framework of Covid-19 virus are effectively examined for lease agreements and rent receivables.
The contracts concluded between the parties in the Turkish Legal System are not bound by any form conditions and the free will of the parties prevails in the provisions of the contract. The parties are bound only by rules that cannot be otherwise agreed upon, such as orderly provisions, public order and general morality, in the Lease Agreements they create of their free will. As we mentioned briefly above, the Virus, which affects all countries including Turkey, presents many commercial problems and the contracts concluded become unbearable for the parties. The results of the lease agreements for the parties and the main possibilities that may be specific to the concrete event can be listed as follows;
- Force Majeure Provisions issued under lease agreements,
- Extraordinary Termination and Consequences of the Contract of Law on Turkish Debts under the heading “Extraordinary Termination” for Important Reasons
- Termination and Consequences of the Contract of The Turkish Debts Under the Heading of “Excessive Execution Difficulty” due to Excessive Execution Difficulties
FORCE MAJEURE PROVISIONS ISSUED WITHIN THE SCOPE OF LEASE AGREEMENTS
As explained above, the Turkish Debts Act includes the freedom of contract; by taking this provision into consideration, the parties can issue contracts based on their own will. In this context, the parties are probably bound by the orderly provisions, public order and general moral rules, but also by the provisions determined by their free will. In particular, there are provisions titled “force majeure” in the Lease Agreements issued for commercial purposes and various termination methods are foreseen as a result.
Force majeure is death, bankruptcy, disease, imprisonment and similar situations that in general can be an obstacle to the fulfillment of duty, commitment and responsibility in law. Although concrete events and situations are varied, the parties shall be able to provide force majeure provisions in the Lease Agreements; in accordance with the provisions of the agreement in question, it may have the right to unilaterally terminate the contract or to suspend the contract available between the parties. Although the virus has yet to be seen throughout Turkey, its effects on commercial life continue unabated. If the effect of the Virus creates great obstacles for the parties of the Lease Agreements to perform the contract and this obstacle creates material destruction, the force majeure provisions determined by the parties’ free will will will come into play if the aforementioned situations are provable.
In this context, the party based on force majeure provision in disputes that may arise will be able to request the termination of the contract by supporting with evidence the fact that the Virus has emerged as an unpredictable element, its commercial activities and the difficulty of performing under the Lease Agreements, and the damages it has suffered and will suffer. In cases where the semen agreements signed between the parties are inadequate in terms of quality, the case law regarding the regulations in the law can be interpreted together and opportunities can be provided to the parties.
For example, in terms of debts imposed on the parties; the concept of force majeure regulated in the sleaze lease agreement signed between the parties is limited to a certain period of time; however, if the situation and conditions have not become favorable within the specified time period, the parties will be able to make an adaptation according to the conditions by taking into account the general provisions of the law and the decisions of the Supreme Court together with the provisions of the common contract. It should be noted that the concept of force majeure should be evaluated separately within the framework of each event. Event and situation analyses should be made and evaluations should be made on a sectarian basis. Although there is a freedom of contract between the parties, the principle of fair interest, the wording of the law and the provisions of case law should be taken into account together with the provisions of the contract.
As a result of the evaluation, the parties to the Lease Agreements, which have lived the conditions specified and have sufficient evidence to prove it, can be eliminated by taking advantage of the force majeure provisions determined by their free will within the scope of the contract, provided that they do not violate the orderly provisions of the law and the principles of interest of the parties.
EXTRAORDINARY TERMINATION AND CONSEQUENCES OF THE LEASE AGREEMENT FOR IMPORTANT REASONS
The extraordinary termination of the lease for important reasons was regulated in the Turkish Debt Law m.331. According to the mentioned article; “Each party may terminate the contract at any time in accordance with the statutory termination notice period in the event of the existence of important reasons that make the continuation of the lease relationship unbearable for itself. Taking into account the circumstances and circumstances, the judge shall decide the monetary consequences of the declaration of extraordinary termination.”
As we mentioned above, the basic principle of the Lease Agreements is the free will of the parties, but in cases where the parties do not regulate or are subsequently issued, general provisions will be made. In this context, as a result of the effects of the Virus, the parties to the Lease Agreements, which do not include the force majeure provision, will be able to assert Article 331 of the Turkish Debt Law No. 6098. However, it should be noted that the article in question is within the framework of the deferred provisions within the scope of the CPC and will not be implemented until 01.07.2020.
The existence of important reasons prevails, in section 4 of the Civil Code. In accordance with the article, it evaluates within the framework of honesty rules and fairness. The concept of important cause is a flexible concept that can vary according to every concrete event. The important reason is accepted as a phenomenon that makes the relationship unbearable for the one who declares termination, and the honesty rule is used to embody it. In order to get to the bottom of the event, it is necessary to pay attention to the elements of the concept of important cause. The event identified as an important cause must first have a significant impact on the Lease Agreements and secondaryly carry elements of insufferability. Therefore, if the global Covid-1 virus we have examined carries the elements listed for the parties to the Lease Agreements, then article 331 of the Turkish Debt Law after the deferral period. The article can be applied according to the concrete event.
As a result, due to the effects of COVID-19, which has caused existing crises on a global basis, each of the parties shall be charged under Article 331 of the Turkish Debt Law after the postponement period. Within the framework of the provision issued in the article, they will be able to proceed to the path of extraordinary termination due to the existence of important reasons that make the continuation of the lease relationship unbearable for him and to eliminate the obligations imposed on the parties by the contract, which has become unbearable by the parties.
TERMINATION AND CONSEQUENCES OF THE LEASE CONTRACT DUE TO EXCESSIVE ADMINISTRATIVE DIFFICULTIES
Extraordinary events of an unforeseen social dimension (war, economic crisis) are sufficient for the implementation of Article 331 of the Turkish Debt Law, as well as events that do not have a social dimension, unlike the adaptation case under Article 138 of the Turkish Debt Law, allow the implementation of Article 331 of the Turkish Debt Law. While the Supreme Court yearns for adaptation cases only for the rental price in terms of the terms of the contract during the Period of The Law no. 818, there is now the possibility that the leases can be adapted within the framework of other contractual conditions besides the rental fees in accordance with article 138 of the Turkish Law on Debts. In cases where the application conditions of Article 138 of the Turkish Law of Debts and article 331 of the Turkish Debt Law occur at the same time, the tenant or renter may also request that the lease be adapted under the Turkish Debts Law m.138 instead of terminating the contract for important reasons.
Article 138 of the Turkish Law on Debts; “An extraordinary situation, which is not foreseen and not foreseen by the parties at the time of the contract, arises for a reason that is not caused by the debtor and changes the existing facts at the time of the contract against the debtor in such a way that it violates the rules of honesty, and if the debtor has not yet fulfilled his debt or has performed it with the reserved rights arising from the excessive difficulty of the performance, if this is not possible, it has the right to return from the contract. In continuous contracts, the borrower uses the right of termination instead of the right to return as a rule. This provision also applies to foreign currency debts.”
This general provision applies to residential and roofed business rents where there are immovable rents. The legislator states that if the conditions that existed when the contract was established with this article change unpredictably and the balance in the contract is irresistibly disturbed by this change, the principle of commitment to the contract cannot be expected from the aforementioned party. The provision of the law has granted the contractual parties the right to terminate continuously enforced contracts if the adaptation and adaptation will be inconclusive as a result of the negative consequences.
It can be said that the unforeseen condition mentioned in the article provision is considered as large-scale situations such as war, economic crisis, high devaluation, epidemic disease for traders. In addition, since each situation carries different elements in itself and the doctrine considers that the merchant is responsible for unforeseen conditions, it does not always seem likely that this article provision will be applied to the traffickers. However, as we mentioned above, coronavirus poses great risks to society and the economy, so it is clear that it has the potential to make many contractual relationships unbearable in the future. Therefore, although there are decisions established within the scope of other previous virus samples, it can be said that the events that will develop should be evaluated and interpreted within the scope of concrete characteristics since it is observed that the Coronavirus in question is more effective.
For all these reasons, in the future, traffickers may apply this provision within the scope of the Lease Agreements between the traffickers if there is evidence of the social and economic effects created by the Virus, their own harms and destruction. Therefore, the parties will be able to balance the collapsed transaction base by requesting adaptation under the Lease Agreements. In addition, if this adaptation cannot repair the basis of the transaction, the right of termination may be raised in continuously acted contracts.