Covid-19 Pandemic Its Legal Effects On Fair Income Distribution And Equality In Opportunity
Covid-19
The pandemic caused by coronavirus has affected our country and the rest of the world in such a dramatic way that all in a sudden we found ourselves not being able to carry out our old habits anymore and trying keep up with the new practices and rules on daily basis. The pandemic, while dictating new orders and manners in every sphere of life, has also indirectly affected the core values of mankind and social life such as fair and equitable distribution of income and set out its own rules in the speed of light.
To be able to speak of income equality, we must first emphasize the existence of equality of the parties and equality of arms as the core values of law. Because, it would be impossible to talk about equality and fairness in cases where such values are violated, and where parties’ income cannot be nourished by the equal resources and thereby the balance of income and expenses is disrupted to the favor of one party.
Generally, members of the society, intentionally or unintentionally, give each other undertakings almost every day, e agreements explicitly or implicitly in the ordinary course of life. Consequently, legal obligations arise.
Performance is the essence of legal obligations. The parties undertake to perform certain obligations to each other in contracts that create mutual obligations. Under such contracts, both parties are the obligees and the obligors to each other and naturally, both parties expect the fulfilment of the obligation of the other party. Such expectation derives from the principle called pacta sunt servanda. This principle, being operative in almost all civilized legal systems, requires the obligor to perform its obligations as promised. Even in cases where the conditions change after the execution of the contract, performance of the previously agreed obligations is essential. However, it is also equally important to consider how strongly the principle of pacta sunt servanda should be relied upon in the occurrence of unforeseeable and irresistible conditions like the coronavirus pandemic. The reason is that, burdening only the obligor with the extraordinarily serious legal consequences of the pandemic instead of fairly allocating of burdens between the parties would serve against the principles of equality of the parties and equality of arms.
During these difficult times, the concept of force majeure which has commonly been discussed and studied in the legal doctrine in a theoretical manner has substantialized as a real-life practice. Indeed, complete evaluation of the consequences of COVID-19 may clearly lead us to the conclusion that the damages incurred in many cases has arisen extraordinarily in an unforeseeable and unpreventable way, demonstrating a classic case of a force majeure event.
Indications supporting this opinion are apparent. Indeed, the pandemic caused a global economic crisis, as a result of which the businesses failed to continue operations and many of them either had to shut down completely or became very close to a complete shutdown. For this reason, many contracts became unperformable and gave rise to an inevitable breach of contractual terms.
General perception is that, contrary to what had been experienced during the previous economic crises back in 1990s and 2000s, our country has so far managed this crisis successfully and acted more cautiously and prudently in an attempt to provide legal remedies for the failure to comply with the contractual obligations. In consideration of the number of disputes in the judicial system since the first impact of the pandemic, it is possible to assert that, in comparison to past experiences, the public has been able to better evaluate this extraordinary case and its potential legal consequences for all parties.
We reach to the same result by observing the legal disputes that we take part in and the general tendencies of the parties for the settlement of such disputes. As a result, the parties experiencing a breach of contractual terms endeavor greatly to stay calm and keep the agreement alive by revising its terms in accordance with the changing conditions, despite having had the opportunity to resort to many destructive legal remedies. This is a sign of maturity, because the principle of pacta sunt servanda is the rule and terminating the agreement or revising its terms remain as exceptions to it. Generally, parties prefer to be partially released from their obligations by amending the terms of their agreement in accordance with the changing conditions instead of completely terminating the legal relationship, even though they would be entitled to it. This means that the parties collectively embracing the damages caused by the pandemic, rather than burdening one another.
Practically, the parties amicably reach to a specific resolution which would have otherwise been reached by the court by establishing a clear case of excessive hardship in performance. Another point worthy of note is that the parties come up with many creative solutions rather than implementing the classical method of contract revision such as reducing or increasing the contract price, changing place or time of performance or changing of maturity dates. In my opinion, the methods created throughout this time will become a subject of Supreme Court practices and will serve as precedent.
Undoubtedly, the extraordinary and distinctive features of the COVID-19 pandemic as compared to past economic crisis of our country, as well as the general reluctance of the Supreme Court recognizing the conditions for contract revision in previous rulings have both greatly served to the establishment of this approach. Surely, in many cases, the prevailing conditions present at the time of conclusion of the contract have substantially changed, the parties’ intention to conclude a contract have diminished and dramatic imbalance occurred between parties’ performance obligations. As a result, one may easily conclude that conditions required for the revision of an agreement as set forth under Article 138 of the Turkish Code of Obligations have been fulfilled.
Imbalance between the parties’ performance obligations undoubtedly affects the balance of income and expenditures and fair distribution in income. The same applies to equal opportunity. Each and every case should be evaluated individually, meaning that, it is essential to investigate the level of impact the pandemic had over the obligor’s business, whether the obligor’s business had been shut down completely or the obligor continued its business operations despite loss. Because, the pandemic has impacted businesses and contracts differently. Many businesses closed, hotels, tour operators, restaurants were unable to operate considerably. However, that does not apply to all sectors and obligors. E-commerce companies, IT sector, cargo companies have increased their business volumes during this period. Despite the closure of many businesses, markets, bakeries, pharmacies and hospitals kept their business running. More examples can be given. As a result, pandemic has paved the way for many businesses in many sectors and positively affected their operations. Hence, it may be argued that the pandemic has affected the relationship between the parties by hindering the market conditions in the meaning of equal opportunities.
As seen, COVID-19 pandemic stands out as a factor setting its own rules and shaping the daily practices. Surely, the pandemic, reshaping the business with its own creation of sense of justice and order will not be forgotten for long by the legal industry and will continue to influence the doctrine and practice.
Yayımlar
- Özel Hastaneler Tarafından Fazladan AlınanÜcretlerinin İadesi
- Savurganlık, Alkol Veya Uyuşturucu Madde Bağımlılığı, Kötü Yaşama Tarzı, Kötü Yönetim Nedeniyle Vesayet
- Şirket Ortakları İçin Altın Değerinde Olan Şey: “BİLGİ”
- Limited Şirkette Haklı Sebeple Ortaklıktan Çıkma
- Yargıtay Kararları Işığında Mal Rejiminde Eşlerin Anne Ve Babalarından Yapılan Devirlerin Hukuki Durumu
- Apartman Görevlilerinin (KONUT KAPICILARI) İş İlişkisi
- İşverenin Eşit Davranma Yükümlülüğü
- Ulusal (İç) Tahkim
- Trafik Kazalarından Kaynaklanan Tazminat Davaları
- Konut Ve Çatılı İşyeri Kira Sözleşmelerinin Uzaması Halinde Belirli Süreli Olarak Devam Etmesi
Avukata Sor
Avukata Sor
Yayımlar
- Özel Hastaneler Tarafından Fazladan AlınanÜcretlerinin İadesi
- Savurganlık, Alkol Veya Uyuşturucu Madde Bağımlılığı, Kötü Yaşama Tarzı, Kötü Yönetim Nedeniyle Vesayet
- Şirket Ortakları İçin Altın Değerinde Olan Şey: “BİLGİ”
- Limited Şirkette Haklı Sebeple Ortaklıktan Çıkma
- Yargıtay Kararları Işığında Mal Rejiminde Eşlerin Anne Ve Babalarından Yapılan Devirlerin Hukuki Durumu
- Apartman Görevlilerinin (KONUT KAPICILARI) İş İlişkisi
- İşverenin Eşit Davranma Yükümlülüğü
- Ulusal (İç) Tahkim
- Trafik Kazalarından Kaynaklanan Tazminat Davaları
- Konut Ve Çatılı İşyeri Kira Sözleşmelerinin Uzaması Halinde Belirli Süreli Olarak Devam Etmesi
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