• What is the meaning of “Force Majeure”?
Although force majeure does not have an objectively determinable application area in practice and theory, it requires separate evaluation according to event groups. If such provisions are included in the contracts, the factors that are considered as force majeure in the contracts must be determined one by one in order to determine the scope and validity of these provisions. Because the Court of Cassation decides on the basis of a concrete case when evaluating force majeure, the circumstances of the case and the provisions of the contract between the parties largely shape the evaluation of the Court of Cassation.
It is seen that the Court of Cassation gives great importance to how force majeure is defined in the contract and what kind of events it covers, especially when it comes to traders who are expected to act prudently in every situation. The reason for this is that in order to make such a qualification, it is necessary to know the nature of the contract, the date of establishment, the risk structure, the extent to which the effects of the event can be eliminated and even the identity of the debtor (whether or not she/he is a merchant).
According to the same view, specifying or not specifying these possibilities in the contract means that it will provide the party with more opportunity to act in defense in the face of legal demands following the occurrence of the violation. The inclusion of these articles in the contract is of great importance in determining the responsibility after the actualization of the act, in other words, in determining the limit of "impossibility". According to another view, it defends the acceptance that these events are the reasons that are counted as examples, rather than the acceptance that these events are limited counting. In other words, the determination of these events in the contract does not have a material effect, but can serve as an example.
According to the dominant view; when investigating the scope of force majeure, whether it is added to the contract or not, the definition of "an extraordinary event that occurs outside the activity and operation of the debtor, which inevitably and absolutely causes a breach of a general norm of behavior or a debt, and which cannot be foreseen and resisted" is the main starting point. creates. This definition arose from practice and doctrine. According to this definition, in order for an event to be considered as force majeure and to be applied whether it is written in the contract or not;
a) It must be a compulsory and compelling event.
b) It must be an external event from the debtor's business.
c) There must be inevitability and unavoidability.
d) Another element is unpredictability.
e) As a final element, there must be an appropriate causal link between the event and the breach of contract.
• What are the events and solutions that will occur as a result of the violation?
Force majeure will cut the causal link and relieve the party from liability even in case of breach of contract. Situations that may arise in the event that the debtor acts in breach of the contract without fault are: -impossibility of performance, -default and -difficulty of performance.
If the performance of the debt is terminated without the fault of the debtor, the obligation to perform the debt will cease. This situation is regulated in Article 136 of the Turkish Code of Obligations. According to the second paragraph of the same article, “The debtor, who is freed from debt due to impossibility in the mutually indebted contracts, is obliged to return the performance he has taken from the other party in accordance with the provisions of unjust enrichment, and loses his right to demand the performance that has not yet been fulfilled to him. The cases where the damage arising before the performance of the debt is imposed on the creditor by law or contract are excluded from this provision.
In the event that a debt that can be performed is not performed on time due to force majeure, the default provisions of the debtor shall apply as a rule. This situation is regulated in Article 117 of the Turkish Code of Obligations. “The debtor of an overdue debt defaults with the warning of the creditor”. In the second paragraph of the article, it is decided that there is no need for a warning in some other cases with "determined term debts". Accordingly, in order for the debtor to default, the performance must be possible, the debt must be due, the debtor must be warned, the creditor must be ready to accept the act, the debtor must not have the right to avoid performance, non-performance must be an act against the debt.
Fault is not a condition for the debtor to default, and if these conditions are fulfilled, the debtor will be in default regardless of whether it is faulty or faulty. In the following article 118, the provision "The defaulting debtor is obliged to compensate the damage suffered by the creditor due to the late performance of the debt, unless he proves that he has no fault in default". Since force majeure will cut the causal link between the debtor's behavior and the damage, the creditor will not be able to demand the compensation of the losses incurred due to default. In addition, according to article 119 of the law: “The defaulting debtor is liable for the damage that may arise due to the unexpected situation. The debtor can get rid of this responsibility by proving that he has no fault in default or even if he has fulfilled his debt on time, by proving that the unexpected situation will damage the subject matter. The expression "unexpected situation" mentioned in the article covers unexpected events in a broad sense, and unexpected events and force majeure in a narrow sense.
In case of difficulty in performance, in accordance with Article 138 of the Turkish Code of Obligations; The occurrence of an extraordinary situation that was not foreseen and expected to be foreseen by the parties at the time of the contract, the fact that this situation did not originate from the debtor, the fact that the existing facts at the time of the contract were made against the debtor to a degree contrary to the rules of good faith, and the debtor has not yet fulfilled its debt or its rights arising from excessive performance difficulties are reserved. In the event that the debtor has fulfilled the contract by keeping it, the debtor may ask the judge to re-adapt the contract in accordance with the changing conditions. If this is not possible, other party can withdraw from the contract.
Ünal § Partners Legal Team
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