Can the Coronavirus Epidemic Cause Force Major in Terms of Contractual Relations?
Since the definition and principles of force majeure are not included in Turkish laws, the doctrine and case law of the Supreme Court outline the framework of the field of application. Considering the relevant Supreme Court case law, it can be said that the existence of a force majeure is assessed separately for each concrete event and is usually interpreted narrowly – especially from the point of view of traders. However, the conditions provided for an event to be considered a force majeure can be listed as follows within the framework of the doctrine and decisions of the Supreme Court:
The fact that the force majeure occurred outside the control areas of the parties,
The force majeure at the time of the establishment of the legal relationship cannot be foreseen, or even if the event is foreseen, the concrete impact of the event cannot be foreseen that it will be so great,
The inability to prevent the force majeure from making the performance of the contract impossible, despite all precautions being taken, and
The fact that the relevant event is stipulated in the contract as a force majeure.
In addition to these basic criteria, it is seen that the Supreme Court evaluates criteria such as whether the incident that is alleged to constitute a force majeure is effective throughout the country, its impact on similar legal relations, and whether the parties are traffickers.
136 Of the Turkish Code of Obligations (“TBK”) in the event that a situation arises in Turkish Law that makes it impossible for one of the parties to perform an act, such as force majeure, 136 of the Turkish Code of Obligations (“TBK”). the provisions on the impossibility of subsequent performance contained in the article find an area of application. In accordance with the said article, the debt will be terminated if the performance of the debt becomes impossible for reasons for which the borrower cannot be held responsible. In this case, there will be no violation of the contract.
As of today, there are no official statements, announcements or announcements that the coronavirus may cause force majeure in Turkey, nor is there a Supreme Court decision. However, it is necessary to recognize that the coronavirus is spreading at a more unpredictable pace around the world compared to other epidemics such as swine flu and avian flu, which are the subject of the current decisions of the Supreme Court. For this reason, it may be possible to consider it as a force majeure, especially for companies and individuals who have commercial relations with countries heavily affected by the outbreak, such as China, Iran, South Korea, and Italy. However, as mentioned above, the Supreme Court of Cassation makes a decision on the basis of a concrete incident when conducting a force majeure assessment, and the circumstances of the incident and the provisions of the contract between the parties largely shape the Supreme Court’s assessment. dec. It is seen that the Supreme Court attaches great importance to how force majeure is defined in the contract and what kind of events it covers, especially in the case of merchants who are expected to act prudently in all cases.
If it is assessed that the effects of the coronavirus have not reached force majeure dimensions, the 138th amendment of the Turkish Commercial Code. evaluation of whether it will be possible to request an adaptation from the court within the scope of the article may also be one of the options that can be applied for in order to maintain commercial relations in a healthy way.