When the euro jumps: can a hotel ask a court to adapt a contract? Article 138 on excessive difficulty of performance

Article 138 of the Turkish Code of Obligations lets a debtor whose performance has become unfair because of an extraordinary, unforeseeable change ask a judge to adapt the contract, or to withdraw if adaptation is impossible. The article states that it applies to foreign-currency debts too. Whether a currency move meets the test is for the court.

A ten-year lease signed in euros, revenue that arrives partly in lira, and a rate that moved further than anyone modeled at signature. The rent is now a different number in the hotel's own currency. The question is not whether that hurts, but whether a court can be asked to change the contract. After reading this you will know the four conditions Article 138 sets, why a written clause beats a lawsuit, and exactly what to keep in a file before anyone files one.

Why does a currency move hurt a hotel contract more than a supply contract?#

Because the obligation is fixed for years while the hotel's ability to pay it is repriced every season.

A lease, a management fee or a long service agreement sets the obligation at signature, in euros or in lira, and leaves it there for the term. The hotel's income side does not stand still: room rates, occupancy, restaurant spend and group business are reset each season, and a large share of that income is collected in lira. The contract already allocates currency risk. Whoever agreed to pay in euros carries it, unless a clause shares it or moves it.

The damage is not the exchange rate itself. It is the gap between the obligation and the revenue that has to pay it, measured over the same months. A supplier can stop supplying or renegotiate the next order. A hotel cannot move the building, so the exposure stays fixed to one address.

Keep two questions apart. Whether the contract is valid and enforceable is one question; whether performing it has become unfair is another. Different rules answer each one, and mixing them weakens both arguments. If part of the revenue comes from long stays, the file has to show those rates too, because they behave differently from nightly business; see pricing weekly and monthly stays. For the wider picture of obligations and income in two currencies, a hotel budget with exchange-rate scenarios is the natural home for these numbers.

What does Article 138 actually require?#

Four conditions at once: an extraordinary situation, a cause not attributable to the debtor, a change unforeseeable when the contract was signed, and performance that has become unfair on the debtor.

That is the test as written in Article 138 of the Turkish Code of Obligations, per the Cumhurbaşkanlığı Mevzuat Bilgi Sistemi's text of 6098 TBK, madde 138 (14 November 2026) (opens in a new tab). The debtor carries the burden. It is the party asking the judge, so it is the party that has to prove each condition, not merely describe how the market moved.

Extraordinary is about the scale and the type of the change, not about how unwelcome it is. A movement the parties could reasonably have priced in is a different case from one they could not. Foreseeability is judged at the date of signature, not at the date of the hearing: what the parties knew, or should have known, when they signed is the reference point.

Unfairness is judged on the balance of the whole contract: what the debtor must now give against what it receives, not one line read alone. And the change must be the reason performance became unfair. A hotel that was already losing money before the move has a harder file than one that was trading well.

The article works through a court. It does not rewrite the contract by itself, and it does not give the debtor a right to perform differently while a case is pending. The judge decides the shape of any adaptation, which may be smaller than what the debtor asked for.

Does Article 138 apply to a contract priced in euros?#

Yes. The article states that it also applies to debts in foreign currency.

That sentence closes an argument: a debt in euros is not outside the article simply because it is not a lira debt. A euro lease is a debt in foreign currency, so the sentence speaks directly to it. This is the question of excessive difficulty of performance in a foreign currency contract, and for a hotel in Türkiye holding a euro-denominated agreement, the article's scope is the first hurdle, and the text clears it.

What the sentence does not do is just as important. It does not convert the debt into lira, freeze a rate, or move the obligation into the hotel's own currency. The debt stays what the contract says it is. It does not make an exchange-rate movement extraordinary by itself: the rate is a candidate trigger, not the proof.

The debtor still has to show all four conditions, including that the change was unforeseeable at signature and that performance has become unfair. The court still decides. The article gives it the power to adapt, and gives the parties no automatic outcome.

Read the article's own words rather than a summary of them, and read them with a lawyer who can apply them to your contract type.

Should a hotel rely on Article 138 or write a price-adjustment clause first?#

Write the clause. Article 138 is what remains when the contract has no mechanism of its own.

A price-adjustment clause is applied by the parties, on a date they chose, using a formula they agreed. It needs no court and no dispute. Article 138 needs a dispute, a filing, a hearing schedule and a judge willing to reshape someone else's bargain. That is a slow route with an open outcome.

A clause should name the trigger and the index, the review frequency, the formula, and a cap. A trigger nobody can measure is not a trigger. Symmetry matters: a clause that only moves upward reads as a one-sided advantage and invites a challenge; one that moves both ways is easier to defend. Add a notice period, a renegotiation window, and an escalation route for the case where renegotiation fails, so the parties know what happens next.

A clause cannot override mandatory law, and a badly drafted one can be argued about for as long as the contract runs. Have it drafted and reviewed by counsel before signature. For a hotel, the revenue side deserves the same treatment: a clause that adjusts the rent but ignores what the hotel can charge is only half a mechanism. The interaction between euro obligations and next season's lira pricing is worth planning at the same time; see setting next season's price rise with lira costs and euro contracts.

What evidence should a hotel keep before anyone goes to court?#

A dated file that shows the contract as signed, the change, and what the change did to the cost of performing.

Start with the signed contract and its date. Foreseeability is measured from that date, so the document itself is the first exhibit. Next, the rate or index on the signature date and on each payment date, taken from a named published source. Central-bank indicative rates are published daily, so the dates can be fixed.

Then the economics. The share of the obligation in the hotel's cost base, month by month, so the judge can see what the change actually did rather than what it might have done. Invoices, payroll and supplier contracts showing what the hotel paid, next to what it charged. Two lines on one page are worth more than a paragraph of description.

Correspondence matters too: when the hotel raised the problem, with whom, and what was answered. A written request to renegotiate is evidence; a phone call is not. Finish with a one-page chronology: signature, first payment, the change, the request, the refusal, the filing. Anyone reading the file should be able to follow it in a minute.

Keep it current. A file assembled after a dispute starts looks like a position; a file kept while trading looks like a record.

What can a hotel ask for: adaptation or withdrawal?#

Adaptation first: the debtor asks the judge to reshape the contract. Withdrawal is the fallback when adaptation is not possible.

Adaptation can take several shapes: a new price, a new index, a shared burden, a shorter term, or a staged change. The judge chooses the shape, not the parties. The order in the text matters. A claim that opens with withdrawal has to explain why adaptation would not work, or it starts in the wrong place.

Withdrawal ends the contract. For a hotel that usually means losing the property or the operating right, so the business decision comes before the legal one. The article is about adapting or ending performance. It is not a compensation mechanism, and it should not be planned as one.

Ask what the hotel wants before asking what the law allows: a lower rent for three seasons and a longer term is a different request from an exit. Whatever the request, it is argued with the file described above, not with the balance sheet alone.

Where does the text stop?#

At the courtroom door. Article 138 gives a route, not an outcome.

No exchange-rate movement qualifies automatically, and no reading of the article tells a hotel in advance what a judge will decide. The article does not authorize a hotel to pay less, delay a payment or stop performing while a case is pending. Doing so creates a second dispute on top of the first.

Take legal advice early, before the file is built and before any deadline in the contract passes. Advice after a filing is more expensive than advice before one. Keep negotiating in writing while the file grows: a documented attempt to agree is useful whether or not a case is ever filed.

This article describes the mechanism in general terms. It cannot tell you whether your contract qualifies, and it is not a substitute for advice on your own file.

What to do next#

Build the file this month, while the contract is still being performed: the signed contract, the rate on each payment date, the invoices, the correspondence and a one-page chronology, then take it to a lawyer before it goes anywhere near a court. Article 138 is the route that remains when a contract has no mechanism of its own; a price-adjustment clause is the mechanism you write while both sides are still friendly. If the contract is already signed, the file is the part you still control.