CORONAVIRUS OUTBREAK AND FORCE MAJEURE RELATIONSHIP

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While the coronavirus epidemic affects our daily life and social
life, which first appeared in Wuhan, China in December 2019 and
has been labelled a pandemic by the World Health Organization
(WHO), has affected the whole world as of yet, it also affects
many contractual relationships negatively.

In order to prevent the spread of coronavirus, measures have been taken
in many countries, including our country, and this process, which
brought life and business life to a halt, negatively affected the activities
of businesses and traders, regardless of small, medium or large from
almost any sector. In addition to international measures such as the
large extent of countries closing their borders, administrative decisions
and measures such as the curfews proclaimed nationwide, the closure
of many businesses or the restriction of their work have undoubtedly
had major repercussions on economic life.
The concept of force majeure, in contracts that charge debt to both
parties, does not exist at the beginning, but appears to be out of control
after the contract is concluded, preventing the exposed party from
performing the contract, and granting rights to the parties such as termination,
suspension, amendment for a certain period of time. is described
as the situation. Turkish Obligations No. 6098 does not provide a
clear definition of compelling reasons in the Republic of Turkey legislation,
especially Law, which states the regulation was left to jurisprudence
and doctrine on the matter could be considered in this context.
In this context, besides the definition of the doctrine as “In the case that
performance of obligations becomes impossible due to occurrence of a
force majeure event after the conclusion of the contract, the debtor will
be discharged from its obligations under such contract.” The decision of
Supreme Court Assembly of Civil Chambers of Law No. 2017 / 11-90 E.
2018/1259 K. and dated 27.06.2018 is as follows: “The force majeure is
the absolute and violation of a general norm of behavior or debt that
occurs outside the activity and operation of the debtor. It is an extraordinary
event that inevitably leads, which cannot be foreseen and resisted.
Natural disasters such as earthquake, flood, fire and epidemic are
considered as force majeure.”
Although there is no general provision regarding the force majeure in
the Turkish Commercial Code numbered 6102, it has found the area of
regulation as special provisions in the valuable documents, transportation
and maritime trade departments. For example, the first paragraph
of Article 811 of the TCO with the heading of force majeure “If the check
is not carried out or protested within a period determined by law, or a
similar determination is not carried out due to an obstacle impossible
to overcome such as the legislation of a state or any force majeure. The
deadlines are longer.” Although there is no definition of force majeure
here, there are special rules regarding the existence of force majeure.
In terms of the solution of the conflicts that are experienced in the coronavirus
epidemic process that we are living in and which are likely
to occur in the future, the issue that needs to be resolved is whether
the coronavirus epidemic can be accepted as a force majeure. Although
there is no definition of force majeure in our legislation, we can conclude
whether it is possible to accept the coronavirus outbreak as a force
majeure based on the doctrine and Supreme Court decisions. It seems
that the coronavirus epidemic is suitable for definition in the form of
an extraordinary event, which is included in the doctrine for force majeure,
occurs outside the responsible and debtor’s activity and operation,
which leads to an absolute and inevitable violation of a general
norm of behavior or debt. For this reason, we take into consideration
the concrete effects of the world, should be regarded as force majeure
cause outbreaks.
The parties may freely determine the content of a contract within the
limits stipulated in the law, provided that it is not contrary to the mandatory
provisions of the law, morality, public order, personal rights or
is impossible. The general principle in Turkish Law is the principle of
freedom of contract. The provision both in the article 26 of the Turkish
Code of Obligations, “The parties can freely determine the content of a
contract within the limits stipulated in the law” and the provision in the
48th article of the Constitution as “Everyone has the right to work and
freedom of contract in the field they wish” demonstrates the principle
of freedom of contract.
In the event that a force majeure occurs, the first way to be followed is
to first look at the existence and content of a contract concluded between
the parties and the force majeure provisions within that contract, if
any. As a result of freedom of contract, contracts are the contract terms
that will be implemented first if there is a provision regarding force majeure.
Also epidemic or infectious disease The fact that the two states
are counted as force majeure in contractual relations also saves the
party claiming force majeure from the burden of proof. In other words,
there is no need to prove whether epidemic or infectious disease is a
force majeure.
Although there is a provision regarding force majeure in the contract,
the main thing is to respect these provisions, but this cannot be in the
form of abuse of the right. Regarding this, the Supreme Court of Law
General Assembly 2003 / 13-599 E. In its decision numbered 2003/599
K. and dated 15.10.2003, “While making the adaptation of the contract
to new situations, it is checked whether there are adaptation provisions
in this matter and then in the law. If there is no provision in the contract
and the law, it is examined whether the contract should be adapted to
the changing circumstances and conditions. Sometimes, although there
is a positive and negative adjustment record in the contract, MK based
on this record to request the same application with the record MK.
It can mean abuse of the right in the sense of the 2 / 2.md provision.
In such a case, if there is an excessive discrepancy between the actions
despite the adjustment in the contract, the adaptation should be made
again. ” He accepted that even if there is an arrangement in the contract,
the parties may ask the judge to adapt the contract.
Although the parties were released within the framework of the freedom
of contract, the ability to impose provisions on force majeure in the
agreements between them is also frequently encountered in practice.
Regarding this, in the decision of the Supreme Court Assembly of Civil
Chambers 2003/13-599 E. 2003/599 K. issued and dated 15.10.2003,
“While making the adaptation of the contract to new situations, it is
checked whether there are adaptation provisions in this matter and
then in the law. If there is no provision in the contract and the law, it is
examined whether the contract should be adapted to the changing circumstances
and conditions. Sometimes, although there is a positive and
negative adjustment record in the contract, MK based on this record to
request the same application with the record MK. It can mean abuse of
the right in the sense of the 2 / 2.md provision. In such a case, if there is
excessive discrepancy between the actions despite the adjustment in the
contract, the adaptation should be made again,” accepted that even if
there is an arrangement in the contract, the parties may ask the judge
to adapt the contract.
In this case, the first thing to be done is to examine whether there is an
adaptation provision regulated in the law regarding the current situation
in which the force majeure occurred. There are many provisions
in the Turkish Code of Obligations that regulate whether the contract
will be adapted to new conditions, terminated or adhered to, if the
existing conditions change. However, in some cases, there are no legal
provisions that regulate the situation of the existing conditions change.
In such cases, the borrower may apply to article 138 of the Turkish Law
of Obligations, which has excessive performance difficulties. According
to the provision of this article; “An extraordinary situation that is not
foreseen and expected to be predicted by the parties at the time of the
contract arises due to a reason that does not arise from the debtor, and
at the time of the contract, it changes the existing facts against the borrower
to the extent that it is contrary to the rules of honesty and the
debtor has not yet performed its debt or the performance of the debt
has become excessively difficult. the borrower has the right to ask the
judge to adapt the contract to the new conditions, if this is not possible,
and to return from the contract if this is not possible. In permanent
performance contracts, the borrower uses the right of termination as a
rule instead of the right to return.”
As a result, the coronavirus epidemic has been labelled as a “pandemic”
by the World Health Organization, and is a globally spreading and
yet uncontrollable condition, and it is determined by the free will of the
parties if there is a force majeure in contractual relations and epidemic
diseases. the force majeure provisions of which they are, may be put into
effect according to the concrete event. If there is no provision on this
matter in the contract, the provisions of the Turkish Code of Obligations
will come into effect.

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