Force Majeure in Turkish Commercial Contracts: Your Rights

A global pandemic, an earthquake, a sudden outbreak of armed conflict — when something extraordinary disrupts a contract, both sides need to know where they stand. Force majeure clauses have moved from the back pages of commercial agreements to the front of every business lawyer's checklist. If you run a business in Turkey or have contracts with Turkish counterparties, understanding how force majeure works under Turkish law is essential.

What Force Majeure Means Under the Turkish Code of Obligations

Turkish commercial and civil law does not use the phrase "force majeure" in its statute books — the concept appears under the term mücbir sebep. The Türk Borçlar Kanunu (Turkish Code of Obligations, Law No. 6098) addresses the legal consequences in Article 136: when performance of an obligation becomes impossible for reasons that cannot be attributed to the debtor, the obligation is extinguished. The debtor is freed from liability.

Turkish courts, including the Court of Cassation (Yargıtay), have developed a consistent three-part test for recognising mücbir sebep:

1. External — the event must originate outside the debtor's business or sphere of control.
2. Unforeseeable — a reasonable person could not have anticipated the event when the contract was signed.
3. Unavoidable — no reasonable precaution could have prevented the harm.

All three elements must be present. Courts examine the circumstances carefully: a business that voluntarily takes on a contract knowing that conflict already exists in a region, for example, will struggle to claim unforeseeability later.

Force Majeure vs. Hardship: A Critical Distinction

Many business people conflate force majeure with hardship — a related but legally distinct concept. Turkish law treats them separately.

Force majeure (mücbir sebep) under Article 136 deals with complete impossibility: the debtor genuinely cannot perform, no matter what they do. The obligation itself disappears.

Hardship (aşırı ifa güçlüğü) is governed by Article 138. Here, performance is still technically possible, but extraordinary and unforeseeable circumstances have made it so burdensome that requiring performance would be fundamentally unfair. In this situation, the debtor can ask a court to adapt the contract to the new reality. If adaptation is not possible, the court may allow the debtor to withdraw from the agreement.

For long-term contracts — supply agreements, construction projects, licensing deals — Article 138 is often more relevant than Article 136, because complete impossibility is rare whereas dramatic shifts in economic conditions are not.

Common Examples of Force Majeure Events

Turkish courts recognise a wide range of events as potential mücbir sebep. Natural disasters top the list: earthquakes, floods, fires, and serious epidemics are consistently treated as qualifying events. Armed conflicts and civil unrest have also been accepted as force majeure in specific contract contexts, depending on whether the parties should have foreseen the risk when they signed.

What courts do not accept as force majeure: ordinary economic difficulties, currency fluctuations on their own, supply-chain problems that could have been managed, or events the debtor could have anticipated based on information available at contracting time.

Your Obligations When Force Majeure Strikes

Invoking force majeure is not passive. Under Article 136, the debtor who cannot perform must notify the other party without delay ("gecikmeksizin"). Sitting on the situation costs you rights — if the delay in notification causes additional loss to the creditor, the debtor becomes liable for that extra harm even if the underlying impossibility was genuine.

Practically, this means:

• Document the event immediately. Gather official reports, government declarations, insurance notifications, or other evidence that establishes the nature and timing of the force majeure event.
• Write to your counterparty promptly. A clear written notice identifying the event, how it affects performance, and what your intentions are protects your position under Turkish law.
• Take reasonable steps to limit harm. Courts expect parties to mitigate damage where possible, even while force majeure continues.

If your contract already contains a force majeure clause, read it carefully — contractual definitions of qualifying events and notification deadlines control over the general statutory framework where they are stricter.

Drafting and Reading Force Majeure Clauses

Many contracts signed with Turkish parties include force majeure clauses, but quality varies widely. A well-drafted clause will define which events qualify, set out notification requirements (typically in writing, within a specified period), explain the consequences (suspension, termination, partial performance), and address what happens to payments already made.

Foreign businesses operating in Turkey often underestimate the importance of these clauses when signing commercial contracts. A clause that simply says "force majeure events excuse performance" without more detail can create serious disputes — especially when the other side disagrees about whether the event qualifies. If disputes do arise, knowing whether your contract provides for arbitration or Turkish court proceedings will shape your options significantly.

The Intersection with Turkish Business Contracts

Force majeure does not operate in isolation. Foreign companies operating through branches, liaison offices, or subsidiaries in Turkey need to understand how force majeure risk sits differently in each structure. A subsidiary is its own legal entity and will bear its own obligations; a branch's obligations run directly to the parent company.

Construction and real estate contracts deserve special attention. Turkish courts have repeatedly addressed force majeure in the context of delays on building projects, and the outcomes turn heavily on how the contract is drafted and how promptly the party invoking force majeure gave notice.

Frequently Asked Questions

Q: Can the COVID-19 pandemic still be invoked as force majeure in ongoing contracts?

Not easily. For contracts signed before March 2020, the pandemic could potentially qualify, but by now Turkish courts expect parties to have adapted. For contracts signed after the pandemic became a known risk, claiming COVID-19 as unforeseen is very difficult.

Q: Does force majeure automatically terminate the contract?

No. Under Article 136, the obligation is extinguished — but the parties may still need to deal with prepayments or other entanglements. For hardship under Article 138, you must first ask the court to adapt or terminate; it does not happen automatically.

Q: What if my contract has no force majeure clause?

Turkish law's Articles 136 and 138 fill the gap. The statutory rules apply regardless of whether the contract mentions force majeure, though a well-drafted clause gives you far more certainty and predictability.

Q: Can a Turkish court modify my contract?

Yes, under Article 138. If hardship is proven, the court can rewrite the terms to reflect the changed circumstances — a powerful remedy that is not available in every legal system.

How Mona Hukuk Can Help

Force majeure disputes in Turkey can move quickly, and the notice obligations are strict. Our team advises foreign businesses on reviewing and drafting force majeure clauses, assessing whether a particular event qualifies under Turkish law, and navigating court or arbitration proceedings when disputes arise.

Contact us at contact@monahukuk.com or call +90 (242) 606 14 32 to schedule a consultation in Antalya.