Turkey: Impossibility Of Performance Under Contracts

Naturally; the performance of the parties' obligations is the main aim of each contract. In respect of general law principle of "pacta sunt servanda", performance of the obligations under a contract shall not be affected from the changing conditions following the execution of such contract and the parties should comply with the provisions of the respective contract as agreed between the same.

However, despite of the principle of "pacta sunt servanda"; in some cases the parties cannot fulfill their obligations due to some circumstances or conditions beyond the control of the parties. In this case; upon satisfaction of some conditions, the party whose performance is affected from such circumstance may be entitled to claim "Impossibility of Performance" under Turkish law.

The impossibility of performance is regulated under Articles 136, 137 and 138 of the Turkish Code of Obligations ("TCO").

  1. Impossibility of performance in general

In accordance with Article 136 of TCO; if it is impossible to perform all the obligations under the contract due to the reasons that are not attributable to the obligor, the obligor shall be released from performing the related obligations. However, unless the obligor dully and timely notifies the creditor on the impossibility of the performance of the obligations and takes necessary precautions to prevent the increase of loss, the obligor shall be liable for the compensation of the resulting losses.

According to the decision of the 3rd Civil Chamber of Supreme Court numbered E.2013/10595 K.2013/12801 and dated 17.09.2013, the nature of the impossibility, whether it is objective or subjective, shall not affect the release of the obligations under the contract if the conditions or circumstances are beyond the control of the parties. In other words; in respect of mentioned court decision, the nature of impossibility does not take into consideration during judgement process and the fundamental point to determine the impossibility is whether such conditions are beyond the control of the parties or not.

  1. Partial impossibility of performance

Pursuant to Article 137 of TCO; when the performance of the obligations under a contract is partially impossible due to reasons for which the obligor cannot be held responsible, the obligor shall be released from the obligations which became partially impossible.

However, if it is clearly understood from the interpretation of the contract that such contract would not be concluded if the respective impossibility would have been foreseen by the parties in advance, then all of the obligations under such contract shall be terminated.

In case the creditor agrees with the partial performance, the corresponding payments shall be released proportionally. In case the creditor does not agree with partial performance or the corresponding payment has an indivisible character, absolute impossibility provisions as explained above shall be applied.

  1. Adoption and Revocation of the Conditions of the Contract

In the case of impossibility of performance, the obligor can request for the adaptation or the revocation of the contract from the court in accordance with Article 138 of TCO, provided that the below stated conditions exist:

  1. An unexpected event which was unforeseen and not expected to be foreseen by the obligor should occur after the execution of the contract
  2. The unexpected event should occur beyond the control of the obligor
  3. In respect of the Principle of Good Faith, performance of the obligations should become excessively burdensome for the obligor because of the unexpected event
  4. Obligor should have performed his obligations by reserving its rights for hardship or not yet performed the obligations under the contract.

The mentioned Article provides two remedies to the obligor; (i) to request for the adaptation of the contract with the changed circumstances, (ii) to revoke the contract.

Impossibility of performance mostly applies in cases where a force majeure event or, for some significant cases, the change of economic conditions makes it wholly or partially impossible to perform the related obligations.

Under Turkish laws, although force majeure is a valid reason for termination of an agreement, there is not any regulation which defines force majeure or states the objective criteria of the same. There by, the Supreme Court evaluates every concrete case by taking into consideration of the specific aspects of the same. Although there isn't any regulation under Turkish Laws which itemizes the events of "Force Majeure", according to the decision of the 15th Civil Chamber of Supreme Court numbered E. 2005/2684 K. 2005/3640 and dated 16.6.2005, it is possible for the parties of a contract to impose the necessary regulations under such agreement.

Generally, the Supreme Court does not accept the change of the economic conditions, high devaluation, and monetary depreciation as a reason for applying the impossibility of performance, since the same consider such occasions as the realities of Turkey and that these cases cannot be accepted as unexpected event which was unforeseen or not expected to be foreseen. However, the Supreme Court evaluates the conditions for adaptation or termination of the contract under Article 138 in each concrete case and, in significant occasions, may accept such reasons for applying the impossibility of performance provisions. (Decision of 13th Civil Chamber of Supreme Court numbered E.2012/8250 K.2013/2623 and dated 7.02.2013, Decision of 13th Supreme Court numbered E.2013/1042 K.2013/31247 and dated 12.12.2013.)

As explained above, in respect of the current decisions of Supreme Court and the mentioned Articles of TCO; the parties of a contract may terminate the related obligations wholly or partially, in case the conditions of the impossibility of performance occur under the respective contract. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions