Naturally; the performance of the parties' obligations is
the main aim of each contract, in respect of general law principle
of "pacta sunt servanda". Despite of the
principle of "pacta sunt servanda"; in some
cases, such as force majeure, the parties cannot fulfill their
obligations due to some circumstances or conditions beyond the
control of the parties.
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.
For that reason, the Supreme Court evaluates every concrete case by
taking into consideration of the specific aspects of the same.
Force majeure generally determines the circumstances such as death,
bankruptcy, illness, detention and similar occasions which are
unforeseen and constitute an impediment to fulfill obligation and
commitment. Force majeure is one of the fundamental concepts of law
and is applied nearly in all sub-branches of law.
Terrorism is an also an unforeseen circumstance which can be
accepted as a force majeure event in some specific cases. There is
not a universal definition for terrorism but it can be defined as
using of violence or threat of violence in order to purport a
political, religious or ideological change. In respect of Turkish
laws, terrorism may also be determined as an event of force majeure
under the contract between the parties as a declaration of will of
Generally, the Supreme Court does not accept terrorism as a
force majeure event due to the reason that terrorism exists in
Eastern side of Turkey for many years and accordingly, it is not an
unforeseen circumstance for the parties of a contract. (The
decision of 22ndCivil Chamber of Supreme Court
numbered E. 2013/19372 K.2014/27624 and dated 14.10.2014)
However, there are some specific decisions of the Supreme Court
in which terrorism is accepted as a force majeure event. Pursuant
to the decision of the 15th Civil Chamber of Supreme Court numbered
E. 2005/2684 K. 2005/3640 and dated 16.6.2005, terrorism can be
assumed as a force majeure event in the cases of difficulties in
staff recruitment and extreme increase of the contract price. If
these conditions exist, the court may decide to implement Article
138 of Turkish Code of Obligations, in which the impossibility of
performance is regulated. In addition, terrorism as a force majeure
event cannot be applicable for partial termination of the contract
in respect of the mentioned Supreme Court decision.
As a consequence, although it is not possible to accept
terrorism as a force majeure event by default under Turkish Laws,
it is possible for the parties to maintain the acceptance of
terrorism as a force majeure event under their contracts by
imposing the necessary regulations under such 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.
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