Since the definition and principles of force majeure are not included in Turkish laws, doctrine and Supreme Court precedents draw the framework of the application area. Considering the relevant Supreme Court jurisprudence, it can be said that the existence of force majeure is evaluated separately for each concrete event and is generally interpreted narrowly, especially in terms of traders. However, the conditions foreseen for an event to be considered as force majeure can be listed as follows within the framework of doctrine and Supreme Court decisions:
The force majeure occurred outside the control areas of the parties,
The fact that the force majeure could not be foreseen at the date of establishment of the legal relationship or that the concrete effect of the event could not be foreseen to be so great even if the event is foreseen,
Failure to prevent force majeure from making the performance of the contract impossible despite all precautions being taken, and
If the relevant event is foreseen as force majeure in the contract.
In addition to these basic criteria, it is seen that the Court of Cassation also evaluates criteria such as whether the alleged force majeure event is effective throughout the country, its effect on similar legal relations, and whether the parties are merchants.
In Turkish Law, if a situation such as force majeure arises that makes it impossible for one of the parties to perform its performance, the provisions regarding subsequent impossibility of performance in Article 136 of the Turkish Code of Obligations find application. Pursuant to the said article, if the performance of the debt becomes impossible for reasons for which the debtor 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 statement, announcement or announcement that the coronavirus may cause force majeure in Turkey, and there is no Supreme Court decision. However, it should be acknowledged that the coronavirus is spreading at a more unpredictable speed around the world compared to other epidemics such as swine flu and bird flu, which are the subject of the current decisions of the Supreme Court. For this reason, it may be considered as force majeure for companies and individuals who have commercial relations with countries that are greatly affected by the epidemic, such as China, Iran, South Korea and Italy. However, as mentioned above, the Court of Cassation decides on the basis of concrete events 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 attaches 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.
If it is evaluated that the effects of the coronavirus do not reach the dimensions that would constitute a force majeure, evaluating whether it is possible to request an adaptation from the court within the scope of Article 138 of the TCO may be one of the options that can be applied to maintain the commercial relations in a healthy way.
