The coronavirus outbreak is a reality that shows its effects in Turkey as well as all over the world. It is inevitable that this outbreak, which affects our daily lives, will affect commercial and legal relations. The impact of this pandemic on commercial contracts, which are indispensable elements of commercial life, is one of the most curious issues in recent days. Therefore, it is useful to address the impact of the pandemic on commercial contracts.
The coronavirus outbreak is a reality that shows its effects in Turkey as well as all over the world. It is inevitable that this pandemic, which affects our daily lives, will affect commercial and legal relations. The impact of this pandemic on commercial contracts, which are indispensable elements of commercial life, is one of the most curious issues in recent days. Therefore, it is useful to address the impact of the pandemic on commercial contracts.
Within the scope of the principle of “pacta sunt servanda” in contract law, it is obligatory for the parties to fulfill the obligations mutually stipulated in advance. However, sometimes the parties cannot fulfill their obligations due to circumstances beyond their control. Force majeure is an unforeseeable and irresistible extraordinary event that may cause the obligor to fail to fulfill the obligation, suspend the performance or terminate the contract. The parties will not be liable for their obligations in case of force majeure. Force majeure provisions are usually included in commercial contracts. In some cases, force majeure clauses are restricted or limited in number. For this reason, it is necessary to first look at the provisions of the contract. Moreover, international commercial contracts may predetermine the applicable law in case of disputes arising in international commercial contracts. In addition, conflict of laws rules may also require the application of the rules of another country in resolving disputes arising from the contract. These issues should first be taken into consideration and then the provisions of the contract should be examined. If the contract does not include these provisions, the general provisions of the Code of Obligations will apply. Force majeure is not clearly defined in the Turkish Code of Obligations. Case law is utilized in this regard. The decisions of the Court of Cassation have drawn the necessary framework for an event to be accepted as force majeure. Therefore, the event to be considered force majeure must have the following elements; (1) It must be unforeseeable at the time of the conclusion of the contract, (2) It must occur after the conclusion of the contract, (3) It must render the performance of the performance stipulated in the contract impossible, and (4) It must be beyond the control of the parties. The Court of Cassation evaluates whether an event constitutes force majeure on a case-by-case basis. As of now, there is no decision of the Court of Cassation regarding the coronavirus as a force majeure event, but considering the decisions of the Court of Cassation regarding the outbreaks that occurred in previous years, it can be said that the coronavirus outbreak may constitute a force majeure event, taking into account the characteristics of the concrete event. In the examination of the concrete case, the effective causal link between the pandemic and the impossibility of performance will be determinative.
Pursuant to Article 136 of the TCO, if it becomes impossible for the debtor to fulfill all of its obligations under the contract due to reasons for which the debtor cannot be held responsible, the debtor shall be released from fulfilling these obligations. However, the debtor must notify the creditor of the impossibility of performance without delay and take the necessary measures to prevent the damage from increasing. For example, if travel, export or import restrictions are imposed by the government in areas where the pandemic is widespread, the performance of obligations relating to certain goods or services may indeed become impossible, or the obligor may be unable to fulfill the performance solely due to the effects of the pandemic on the obligor. Therefore, a force majeure event may arise, especially for companies and individuals who have commercial relations with countries affected by the pandemic, such as China, Iran, Italy, etc. If the impossibility of performance is temporary, the debtor will be in default and will not be obliged to compensate the damages arising from this delay. However, the debtor must fulfill his/her obligation after the disappearance of the circumstance that caused the impossibility of performance.
On the other hand, if the fulfillment of the obligor’s obligations has only become more troublesome or expensive due to the epidemic, the debtor cannot claim force majeure. In this case, the contract may be adapted to the changing conditions in accordance with Article 138 of the TCO. If the parties have not previously agreed on how the contract will be adapted, they may request the adaptation of the contract from the judge. If it is not possible to adapt the contract, the relevant party has the right to terminate the contract. In order for this rule to be applied, there must be a significant failure in the fulfillment of the performance due to the pandemic in the concrete case.
