Can the Coronavirus Outbreak Create Force Majeure in Terms Of Contractual Relationships

17 Apr Can the Coronavirus Outbreak Create Force Majeure in Terms Of Contractual Relationships

Can The Coronavirus Outbreak Create Force Majeure In Terms Of Contractual Relationships?

Since the definition and principles of force majeure are not included in Turkish law, doctrine and Supreme Court case law draw the framework of the application area. Given the relevant Supreme Court case law, it can be said that the existence of force majeure is evaluated separately in terms of each specific event and is often narrowly interpreted-especially from the point of view of traders. However, the conditions stipulated for an event to be considered force majeure can be listed as follows within the framework of doctrine and Supreme Court decisions:

Force majeure occurred outside the control areas of the parties,
Force majeure at the time of the establishment of the legal relationship is unpredictable, or even if the event is foreseen, the concrete impact of the event will be so great that it cannot be predicted,
Failure to prevent force majeure from making the execution of the contract impossible, despite all measures being taken, and
The relevant event was stipulated as force majeure in the contract.
In addition to these basic criteria, the Supreme Court also considers criteria such as whether the incident allegedly caused force majeure is effective throughout the country, its impact on similar legal relations, and whether the parties are merchants.

136 of the Turkish Code of Obligations (“TBK”) in the event of a situation in Turkish law that makes it impossible for one of the parties, such as force majeure, to perform its act. the provisions on subsequent impossibility of performance contained in the article find scope of application. According to this article, if the performance of the debt becomes impossible for reasons that the borrower cannot be held responsible, the debt will expire. In this case, there will be no breach of contract.

As of today, there is no official declaration, announcement or announcement that coronavirus may cause force majeure in Turkey, and there is no Supreme Court decision. However, it is necessary to recognize that coronavirus is spreading at a more unpredictable pace worldwide compared to other epidemics such as swine flu and avian flu, which are the subject of current decisions of the Supreme Court. For this reason, it may be considered force majeure, especially from the point of view of firms and individuals in commercial relations with countries heavily affected by the outbreak, such as China, Iran, South Korea and Italy. However, as mentioned above, the Supreme Court decides on the basis of a concrete event when evaluating force majeure, the circumstances of the event and the provisions of the contract between the parties largely shape the Supreme Court’s assessment. In particular, the Supreme Court seems to care very much about how force majeure is defined in the contract and what events it covers, especially when it comes to merchants who are expected to act prudently in all cases.

If it is assessed that the effects of coronavirus do not reach the dimensions that will cause force majeure, Tbk 138. an assessment of whether it will be possible to request adaptation from the court under the article may also be one of the options that can be applied to maintain a healthy trade relationship.