Force Majeure

Legal Meaning

The Turkish Code of Obligations (TBK) does not define force majeure in a single article for all contracts. The concept is applied together with the provisions on fault, causation, impossibility of performance and excessive difficulty of performance. A natural disaster, war, a decision of a public authority or a widespread epidemic is not automatically force majeure in every case; its effect on the specific obligation must be shown.

The contract may regulate the definition of force majeure, the notice period, supporting documents, suspension, adaptation and the consequences of termination. A party can be expected to notify the event and its effects in good time, to take measures reducing the loss and to investigate alternative means of performance.

Invoking force majeure does not by itself eliminate all of the creditor’s claims. A temporary obstacle, permanent impossibility and a mere cost increase cannot be tied to the same consequence. For adaptation under TBK Article 138 as well, special conditions are required together: an extraordinary change that was not foreseen, and could not have been expected to be foreseen, when the contract was concluded, the change not arising from the debtor, and an excessive aggravation of performance, together with the circumstance of performance or the reservation of rights.

Core Elements and Practical Criteria

• The event must be outside the party’s sphere of control.
• Unforeseeability and unavoidability are assessed in concrete terms.
• Its actual effect on the performance must be proven.
• The risk and notice provisions in the contract are important.

Practical Significance

It is not sufficient to invoke force majeure automatically and without documents. The date of the event, the affected obligation, the causal link, the measures taken and the notices should be recorded.

Commonly Confused Concepts

• In impossibility of performance, the obligation can no longer be performed; force majeure describes the nature of the event, and its consequence is not always the extinction of the obligation.
• In excessive difficulty of performance, performance remains possible but has become burdensome to a degree contrary to the rule of good faith.

Practical Example

For goods that are the subject of the contract and whose import is completely prohibited by a public decision, a conclusion of direct termination cannot be drawn without examining the duration of the event, the possibility of alternative supply and the allocation of risk in the contract.

Frequently Asked Questions

Is economic hardship alone force majeure?

Generally it is not sufficient by itself. The extraordinary nature of the event, its being beyond control and its effect on the performance must be made concrete.

Does force majeure always terminate the contract?

No. Different consequences may arise, such as suspension, extension of time, adaptation, or partial or full impossibility.