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. Since 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 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. The reason for this is that in order to make such a qualification, it is necessary to know the type of the contract, the date of signature, 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 he/she 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 against legal demands after the violation occurs . The inclusion of these articles in the contract has a 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 of the reasons listed 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 majority opinion; In 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. 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;
- It must be a compulsory and compelling event.
- It must be an external event from the debtor’s business. In other words, the event that caused the loss must occur independently of the enterprise that suffered the loss. This externality should not be the typical risks of the field of activity. These typical risks are not considered force majeure. This externality is not sought in unexpected event. However, the event that constitutes a force majeure makes the performance of the debt impossible, while the unexpected event makes the performance of debt difficult. While force majeure eliminates the debt arising from the contract, the debt does not disappear in the event of an unexpected event. On the other hand, force majeure causes the contract to be temporarily suspended or terminated completely, while the unexpected event results in the adaptation of the contract to changing conditions. An increase or decrease in the value of money and changes in the exchange rate can be given as an examples of unexpected situations. However, in the decision numbered 2017/2821, 2017/1552 of the General Assembly of the Supreme Court of Appeals, the acceptance of the economic crisis as a force majeure other than the ones listed, even if the conditions in the contract are limited, contradicts the ideas previously expressed.
- There must be inevitability and unavoidability. The outcome of the event must exceed what is expected from the normal course of life and normal life.
- Another element is unpredictability. Unpredictability is considered the consequences that occur, rather than the event itself. (Arzu Oğuz) Unpredictability can be considered as absolute and relative. Relative unpredictability should be taken into account in determining liability. However, repeated supernatural events cannot be accepted as force majeure. In this context, devaluations in currency and actions arising from the fight against separatist terrorism in Turkey will not be accepted as force majeure. (Tamer İnal)
- As a final element, there must be an appropriate causal link between the event and the breach of contract.
Events that will occur as a result of the violation and their solutions:
Force majeure will cut the causal link and relieve the party from liability even in case of breach of contract. Situations that may arise if the debtor acts in breach of the contract without fault: -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 ceases. As a matter of fact, this situation is regulated in Article 136 of the Turkish Code of Obligations as follows; “If the performance of the debt becomes impossible for reasons for which the debtor cannot be held responsible, the debt ends.” According to article 136/2 of the Turkish Code of Obligations, “The debtor who is freed from debt due to impossibility in contracts that impose a reciprocal debt 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. According to article 117/1 of the Turkish Code of Obligations, “The debtor of a due debt is in default with the notice of the creditor”. In the second paragraph of the article, it has been decided that there is no need for a notice in some other cases and “tempus certum debts”. Accordingly, for the debtor to default, the performance must be possible, the debt must be due, the debtor must be given notice, 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 contrary to the debt. Fault is not a condition for the debtor to be in default, and if these conditions are fulfilled, the debtor will be in default regardless of whether it is faulty or not. In the following article 118, the provision “The debtor in default 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 the force majeure will cut the causal link between the behavior of the debtor and the damage, the creditor will not be able to demand the compensation of the losses incurred due to default. In addition, Turkish Code of Obligations Article 119 “The defaulting debtor is liable for the damage that may arise due to the unexpected event. 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 event” 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 conclusion of the contract changed the demand for performance against the debtor to a degree contrary to the rules of good faith, and the debtor has not yet fulfilled his debt or his rights arising from excessive performance difficulties are reserved. In the event that the debtor has fulfilled the contract in a timely manner, the debtor may ask the judge to re-adapt the contract in accordance with the changing conditions. If this is not possible, he can withdraw from the contract.