Force majeure refers to a situation in which obligations arising from a contract cannot be performed, temporarily or permanently, due to events that develop outside the parties' control and are unforeseeable and unpreventable. Natural disasters such as earthquakes and floods, war, epidemics, and government decisions are examples that may be assessed within this scope.
Why Should It Be Regulated as a Separate Clause?
Although the Turkish Code of Obligations contains general principles relating to the concept of force majeure (impossibility, TCO Art. 136 et seq.), if the contract does not contain a separate and explicit force majeure clause, serious disputes may arise between the parties as to which events will be considered force majeure, how the notification obligation will operate, and what the fate of the contract will be. An explicit clause clarifies the parties' expectations from the outset and reduces interpretive uncertainty in a potential dispute.
Elements That Should Be Included in a Force Majeure Clause
- Definition and scope — Listing, by way of example, which events will be considered force majeure (natural disaster, war, epidemic, decisions of official authorities, etc.).
- Notification obligation — The obligation of the party encountering force majeure to notify the other party of the situation within a reasonable period, and the form of that notification.
- Consequences — Provisions such as obligations being suspended for the duration of the force majeure, and either party being able to terminate the contract if the period exceeds a certain threshold (e.g., 30-60 days).
- Allocation of loss — How losses arising during the force majeure period will or will not be covered.
The Risk of a Missing or Vague Clause
In contracts that lack a force majeure clause, or in which it is drafted vaguely, the risk increases that a party unable to perform their obligation will face a default/compensation claim from the other party, because the court is forced to assess the specific case according to general provisions, and this assessment may turn out against one of the parties.
Conclusion
A force majeure clause is an element that should be counted among a contract's "standard closing clauses" and should not be neglected. The scope and consequences of the clause should be drafted carefully, according to the type of contract and the parties' risk tolerance.
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