Law and regulation of force majeure in Turkey

There is no legislation that specifically defines force majeure. However, under Turkish law (i.e. the Turkish Code of Obligations (“TCO”)), force majeure refers to an unavoidable and unexpected occurrence beyond the control of natural or legal persons, which prevents the fulfilment of the obligations and which cannot be prevented despite measures taken by the parties.  

There is no specific definition of force majeure under Turkish law. However, judgments of the Court of Appeals (Yargıtay) suggest that force majeure may be defined as follows: “An event that is impossible to predict and cannot be taken into consideration in advance and consequently cannot be eliminated, and which stems from an external factor. This event may come from a natural force (such as a storm, waterfall, flood) or from a third person’s act (like in tort) or a formal ban”.

Due to the principle of freedom of contract under Turkish law (sözleşme serbestisi ilkesi), parties are free to regulate force majeure clauses. 

Parties are free to regulate force majeure clauses as long as such clauses do not contradict mandatory provisions of Turkish law. Further, Article 2 of the Civil Code, which regulates the principle of good faith (dürüstlük kuralı), prohibits the abuse of freedom of contract. However, each force majeure clause must be assessed on a case-by-case basis in order to determine whether its terms constitute a possible abuse of freedom of contract.

There is no available guidance on this point. In the event of the termination of a contract for “force majeure”, the court must assess the specific force majeure event in light of the judicial precedents of the Turkish Court of Appeals (e.g. force majeure could be defined as follows: “An event that is impossible to predict and cannot be taken into consideration in advance and consequently cannot be eliminated, and which stems from an external factor. This event may come from a natural force (such as a storm, waterfall, flood) or from a third person’s act (like in tort) or a formal ban.”)

No.

No. However, in the event that a force majeure clause is included in the T&Cs of a B2C contract, then this clause must not be interpreted to the detriment of the consumer.

Under Turkish law, every contractual relationship must be examined on an individual basis in order to draft a force majeure clause that best fits the expectations of the parties. However, the below wording (which widely covers many issues) could work well in practice:

“None of the parties will be liable for breaching any of their obligations if the relevant party proves that the breach is due to a supervening event beyond its control and it is unreasonable to expect that such party could have foreseen or expected such an event to occur, that it could have avoided or overcome it, or that they could have avoided or overcome the consequences thereof. Force majeure shall include, but shall not be limited to earthquakes, fires, hurricanes, floods, tsunamis, volcanic activity, droughts, landslides, strikes, closures, trade union disputes, government restrictions, orders, or provisions from the authorities, political, social or health instability, plagues, epidemics, pandemics, political and economic situations including wars, riots or an act or acts of terrorism suffered in the country or border countries that could affect the subject of this contract.”  

N/A

Article 136 of the TCO regulates the impossibility of performance (ifa imkansızlığı), pursuant to which a debtor will be relieved of its obligations if the fulfilment of these obligations becomes impossible due to a reason that is not attributable to the debtor.

Further, it should be considered whether the debtor could be entitled (i) to request that the court adapt the contract, or if such adaption is not possible, (ii) to revoke the contract under Article 138 of the TCO, which regulates contracts in the event of hardship (excessive difficulty of performance/aşırı ifa güçlüğü). 

Accordingly, under Article 138 of the TCO, a debtor who has not yet fulfilled its obligations arising from the agreement or who has fulfilled its obligations by reserving its rights arising from the excessive difficulty of the performance has the right to request that the court (i) adapt the contract to the new conditions or (ii) revoke the contract if adaption is not possible. However, in order to initiate such a claim, an extraordinary situation which is neither foreseen nor expected by the parties at the time of the execution of the contract must exist, provided that this situation does not arise as a result of the actions of the debtor.

According to the general approach of the Turkish Court of Appeals, financial difficulties arising from an economic crisis are not regarded as constituting a force majeure event. However, notwithstanding this general approach, certain decisions of the Turkish Court of Appeals do provide that, in the event that it becomes impossible to finance a project that requires large-scale financial investment, the contract will fall within the scope of force majeure as a result of an economic crisis.

Furthermore, in a recent decision, the Bursa Regional Court of Appeals ruled that a pandemic should be deemed a hardship in terms of Article 138 of the TCO. However, any case-law resulting from the Turkish Court of Appeals decision should be followed closely with the understanding that it is not clear whether the majority of the courts will deem a pandemic as an impossibility of performance or a hardship in terms of Articles 136 and 138 of the TCO, respectively.