What is Force Majeure?
Force majeure is defined in Article 133 of the Code of Obligations and is defined as “unforeseen, unexpected and inevitable external events”. These events make it impossible or extremely difficult for the debtor to fulfill its contractual obligations.
Can COVID-19 Be Considered As Force Majeure?
Whether COVID-19 can be considered a force majeure should be evaluated according to the characteristics of the concrete event and the content of the relevant contract. The decisions of the Supreme Court on this issue are also in this direction.
Matters Considered When Accepting Force Majeure:
• Effect of the Epidemic: It is important how the epidemic affects the performance of the contract and how intense this effect is. For example, travel restrictions and business closures imposed due to the pandemic may make performance impossible in some sectors, while making performance difficult in others.
• Nature of the Contract: The type and purpose of the contract also play a role in the force majeure assessment. For example, in lease agreements, the tenant may allege COVID-19 as a reason for not being able to pay the rent, while in a sales contract, the seller may not allege COVID-19 as a reason for delaying delivery.
• Force Majeure Clause in the Contract: Many contracts contain a force majeure clause. This article specifies which events will be considered as force majeure and the rights and obligations of the parties in case of force majeure. The presence of a force majeure clause in the contract increases the possibility of the event being accepted as force majeure.
Some Important Decisions Regarding COVID-19 and Force Majeure:
• Supreme Court of Appeals 13th Civil Chamber, 2020/13879 Merits, 2021/5976 Decision: In this decision, it was decided that the COVID-19 epidemic was a force majeure and the rental fee stipulated in the rental agreement should be reduced.
• Supreme Court of Appeals 15th Civil Chamber, 2020/15393 Merits, 2021/6231 Decision: In this decision, it was decided that the COVID-19 epidemic is not a force majeure and that the price stipulated in the real estate sales contract should be paid.
