Adaptation of the contract to changing conditions due to excessive hardship

The most important source of obligations is the contract. A contract is formed as a result of trust between at least two parties, with the expectation of attaining certain benefits. The parties validly bonded to a contract must perform in accordance with the rules agreed in the contract. This necessity is expressed as the contractual commitment. The parties that bind themselves to each other by contract, must perform as a reasonable, moderately intelligent and honest person while exercising their rights or fulfilling their obligations in accordance with the rules they have agreed upon. This necessity is expressed as the principle of honesty. In a free society, individuals protect their interests best. Any interference that may come from outside to individuals who are legally equal, undermines the principles of equality and freedom among them. In fact, in a legal system that ensures the freedom and equality of individuals to the maximum extent, they are given the opportunity to make contracts as they wish. This prerogative is called freedom of contract. The parties that bonded with the contract, have to fulfill their obligations, which are the object of the contract, by complying with the conditions they have determined as they wish. At the time of establishment of the contract, a balance occurs between the acts determined by the parties by considering their interests, in line with the value they attribute to their acts. This balance between the acts may be unbearably disturbed due to extraordinary changes that occur afterwards and that are not caused by the parties, except for the inherent risks that the parties initially bear. In this case, although the party that has deteriorated against the balance between acts has the opportunity to perform its act, it may constitute a violation of the principle of honesty. In such exceptional cases, it has been experienced that the principle of commitment to the contract leads to unfair results and it has been accepted that the contract must be adjusted to changing circumstances in order to prevent this. Adjustment of the contract to changing circumstances is regulated, in Turkish Code of Obligations m. 138, under the title of hardship. In this study, the necessary conditions for implementation of the TCO m. 138, has been examined on the basis of the principles of the law of obligations.