Is it Possible to Consider the Declaration of “State of Emergency” as a Force Majeure Event? 28 June 2017
I. What is a State of Emergency?
Articles 119 and 120 of the Constitution of the Republic of Turkey (“The Constitution”) provide the circumstances for which the Council of Ministers meeting under the chairpersonship of the President of the Republic may declare a state of emergency.
According to these provisions, a state of emergency may be declared in the event of natural disaster, dangerous epidemic diseases or a serious economic crisis in one or more regions or throughout the country for a period not exceeding six months. Likewise, it may also be declared in one or more regions or throughout the country for a period not exceeding six months due to widespread acts of violence and serious deterioration of public order after consultation with the National Security Council. State of emergency decision is submitted to the Grand National Assembly of Turkey for approval after its publication in the Official Gazette.
In the event of state of emergency, various precautionary measures can be taken which may suspend the exercise of fundamental rights and freedoms partially or entirely pursuant to Article 15 of the Constitution. The types of measures are provided in the State of Emergency Law numbered 2935 (“Law”).
II. What is Force Majeure?
The most significant consequence of a valid obligatory relationship for the obligor is to perform obligations in the agreed manner. The breach of an obligation occurs when one party fails to comply completely or satisfactorily with her obligations.[1] However, according to the Turkish Code of Obligations no. 6098 ("TCO"), if an impossibility to perform all the obligations arises due to the reasons that are not attributable to the obligor, the obligor shall be fully or partially released from performing the related obligations and cannot be held liable for damages.
Ability of parties to fulfil the obligations may be affected due to different reasons including force majeure. The requirements of a force majeure circumstance are the lack of fault of the obligor, unforeseeability, irresistibility and real coercion.[2] The Supreme Court defines force majeure as "An unexpected event unavoidable by any means or persons that occurs beyond the control of the obligor and prevents the performance of obligations" in its decision given by the 13th Civil Chamber, numbered E. 2009/8727 K. 2010/101 and dated 18.1.2010. Therefore, force majeure only exists when the event carries aforementioned characteristics.
Whether an event constitutes force majeure or not should be decided on a case-by-case basis as it necessitates an evaluation regarding the satisfaction of its requirements. Thus, the same event may or may not be recognized as constituting force majeure depending on the case.
III. Is it Possible to Consider the Declaration of a State of Emergency as a Force Majeure?
The declaration of a state of emergency does not constitute force majeure on its own. In order to consider a state of emergency as a force majeure event, there has to be a causal connection between the state of emergency and the failure to perform obligations.
In other words, the precautionary measures taken pursuant to the Law due to the state of emergency must be of a nature which affects the parties to a contract. Moreover, the precautionary measures must prevent the performance of obligations. In short, the breaching party should be unable to fulfil its duties under the contract due to the precautionary measures taken within the scope of state of emergency.
For these reasons, an evaluation must be made on a case-by-case basis in order to determine whether the requirements for the existence of force majeure are satisfied by the declaration of force majeure, just like for any other force majeure event. In that respect, merely the declaration of a state of emergency cannot be regarded as a legitimate ground to plead force majeure by the breaching party.
[1] Prof. Dr. Ahmet M. Kılıçoğlu, Borçlar Hukuku Genel Hükümler, Turhan Kitabevi Ankara, p.613
[2] Dr. iur. A. Pulat Gözübüyük, Kazancı Yayınevi Ankara, p.85
Türkçe Versiyonu İçin
