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 such parties.
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 22nd Civil 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.
