THE CONCEPT OF THE FORCE MAJEURE UNDER THE UNITED NATIONS CONVENETION ON CONTRACTS FOR INTERNATIONAL SALE OF GOODS (“CISG”) 14 August 2020

Scope of Application of the CISG

Before evaluating the concept of "Force Majeure" according to the CISG provisions, it is necessary to determine in which cases the CISG will be applied. CISG; It is an international agreement which was accepted by the United Nations General Assembly on 11.04.1980 and entered into force on 01.01.1988. Today, this Convention has been signed by 76 states. It is also came into force on the date 01.08.2011 in Turkey.

With the provisions of the contract, it is aimed to make the practices in international goods sales uniform and to prevent disputes that may arise in the settlement of disputes.

Accordingly, the first condition necessary for the implementation of CISG in contracts or a dispute that will arise between the parties; It is the realization of a goods sale transaction by the parties within the scope of CISG provisions.

Secondly, companies that conclude a contract for the sale of goods must be located in different states that are parties to CISG and have not made a regulation that CISG provisions will not be applied among themselves.

At this point, CISG provisions are widely applied, since the states parties to the CISG convention are active countries in import and export. Moreover, it is possible for the parties to decide to apply the CISG provisions with an agreement to be made between companies in non-party states.

The Concept of Force Majeure Under The Turkish Law

The definition of the concept of "force majeure" is not made in a certain legislation in Turkish law. For this reason, while defining this concept, it will be necessary to examine the Supreme Court decisions and doctrine views. Accordingly, the basic conditions for an event to be alleged as force majeure are as follows;

Event;

• It must occur outside the control of the parties,
• be unpredictable and
• unpredictable.

In addition, if the event occurs despite the measures taken, the execution of the contract should have become impossible. According to Turkish law, in addition to the above conditions, the parties have the right to define the force majeure in the contract provisions.

On the other hand, the concept of force majeure, which removes the responsibility of the parties in case the contract acts become impossible, should be evaluated separately within the scope of the CISG provisions.

The Concept of Force Majeure Under The CISG

According to the CISG provisions, the parties are under warranty responsibility. On the other hand, there is a regulation under the title of "Relief from Responsibility" in Article 79 of the CISG. According to this article;

 “A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.”

As can be seen, in the relevant provision of the CISG, similar to the concept of force majeure in the doctrine, it is stated that the impossibility must occur outside the fault of the parties and must be unpredictable. In this context, of course, the reason in question is expected to constitute a reasonable obstacle to the performance of the contractual obligations.

In this context, although the provisions in the CISG are similar to the concept of force majeure in Turkish Law, it will be important to apply the CISG provisions in legal systems where force majeure can only be alleged provided that it is clearly stated in the contracts between the parties. At this point, if the CISG provisions are implemented, the concept of force majeure may be put forward even if it is not clearly stated in the contract.

In this direction, it is known that contractual obligations have become impossible for many companies, especially due to the disruptions in supply chains and the measures implemented between countries within the scope of the Covid-19 outbreak. As a result, it is known that parties face difficulties, especially in cases where force majeure situations are not regulated in detail in contracts.

In this context, it seems possible for companies affected by the Covid-19 outbreak or unable to fulfill their obligations arising from the contracts they are a party to, request to benefit from CISG provisions if they meet the specified conditions.

However, in this context, based on the general force majeure practices in Turkish law and the relevant provision of the CISG, it will be necessary to determine that the epidemic in question or another reason causing the impossibility constitutes a de facto impossibility in the concrete case.