Impossibility of performance (ifa imkânsızlığı)

Legal meaning

Initial impossibility is distinguished from impossibility arising after the contract is concluded. In subsequent impossibility, the fault of the debtor, whether the event is temporary or permanent, and the divisibility of the performance are examined. Where the impossibility cannot be attributed to the debtor, restitution under the reciprocal obligations may come into question.

The debtor is obliged to notify the creditor without delay that performance has become impossible and to take the measures necessary to prevent the loss from increasing (Article 136/3 of the Turkish Code of Obligations, TBK). A breach of the duty to notify may give rise to separate liability for the loss.

Initial objective impossibility affects validity under TBK Article 27. In the case of subsequent impossibility for which the debtor cannot be held responsible, the obligation comes to an end under TBK Article 136; in a reciprocal contract, what has been received is returned in accordance with the provisions on unjust enrichment, and the right to demand a counter-performance not yet received is lost. Cases in which the risk is left to the creditor by law or by contract are reserved. The conditions of TBK Article 137 apply to partial impossibility, and TBK Article 112 in particular applies to impossibility for which the debtor is responsible.

Core elements and practical criteria

• It is determined whether performance is genuinely possible.
• The debtor’s fault is examined separately.
• Complete and partial impossibility are distinguished.
• The consequences for restitution and compensation are assessed according to the contract.

Practical importance

An increase in cost alone, or performance becoming more difficult, is not always impossibility. The nature of the technical, legal or factual obstacle and the possibility of alternative performance must be shown with concrete evidence.

Commonly confused concepts

• In default, performance is possible but late; in impossibility, the performance cannot be carried out.
• In excessive hardship in performance (aşırı ifa güçlüğü), performance is possible, but changed circumstances make it burdensome to a degree that conflicts with the principle of good faith.

Application example

The loss, without fault, of a work that is specific to the contract and cannot be replaced by another product may, depending on the nature of the performance, constitute subsequent impossibility.

Frequently asked questions

Is an increase in cost regarded as impossibility of performance?

As a rule, an increase in cost alone is not impossibility; excessive hardship in performance or the contract’s risk provisions may come into play.

Is the price received refunded when performance becomes impossible?

In contracts imposing reciprocal obligations, the statute’s restitution provisions may apply; the specific contract and the exceptions are examined.