The Effect of Epidemic Diseases on Execution of Agreement

March 17, 2021

As it is known, Corona (COVUD-19) outbreak emerged in Wuhan city of Hubei province of China and affected many countries, including the neighbour countries of Turkey. The epidemic affecting almost the whole world and causing the necessity to be quarantined by closing the border gates of many countries around the globe affects international trade with imports, exports and travel prohibitions/restrictions. Due to the increase of these restrictions applied to prevent virus outbreaks, the execution of agreements becomes more difficult and sometimes impossible.

Force Majeure defined in the Supreme Court Law General Assembly 2017/1190 File Number and 2018/1259 Decision Number; “It is an extraordinary event that cannot be foreseen and resisted, which leads to an absolute and inevitable violation of a general norm of behaviour or debt occurring outside the activity and operation of the responsible or debtor.”

Therefore, for the force majeure principle to be applied to the agreement, some conditions shall be seen in the relevant case;

– It emerged later, and its predictions can not be expected from the parties,
– The failure of the borrower to perform the debt is caused by an incident that cannot be attributed to it,
– The parties’ inability to prevent the situation arising,
– This emerging emergency shall have made it impossible to perform the contract.

In short, the elements sought for the existence of force majeure shall be described as “unpredictability”, “nonopposition”, “realization outside the debtor” and “making impossibility impossible”. The application of epidemic diseases such as Coron (COVID-19) to the agreements as force majeure shall be possible only with the realization of these four conditions mentioned above.

As of 10.03.2020, Corona (COVID-19) has been declared as a “pandemic” disease by the World Health Organization (WHO), and all the countries affected/non-affected by the virus have directed to take measures and restrictions against it. Within the scope of these measures and restrictions, many countries and cities are temporarily quarantined, entry-exit to some countries is prohibited, and airfields are closed in some countries. Apart from the public administrations, some special restrictions are imposed by private organizations by taking measures against the virus, and these measures may result in the execution of agreements for goods and services. Due to the restrictions applied, it shall be necessary to consider case-by-case, to apply the force majeure principle to the agreements according to the concrete situation.

Consequently, Corona (COVID-19) emphasizes that the virus outbreak is not a force majeure that shall automatically provide the parties with the right to terminate agreements unilateral indemnity, but it shall be considered as a force majeure if the agreement is rendered impossible due to the epidemic. To explain with an example, it is possible to act according to this principle by considering the agreement signed by the company A and company B due to an activity to be held on 25.03.2020, if the place/working arm of the event shall be holidayed by the administration on these dates, the condition of force majeure has been realized.

Another example, following circular sent to the governor by the Ministry of Interior in Turkey, public and leisure carrying out activities in places nightclubs, discotheques, bars are decided to suspend their operations temporarily by March 16, 2020. As can be seen, for example, in the contractual relationship of a venue whose activity has been suspended in accordance with the relevant circular shall be discussed under the force majeure clause. The force majeure principle shall be taken as such since the activity under the agreement is included in this scope and is no longer legally possible under the relevant circular. Since this makes it impossible to execute the agreement on the practical ground, the existence of the force majeure factor shall be determined more clearly.

The European Union Agency; Education, Audiovisual and Culture Executive Agency, stated on March 6, 2020, that many agreements included the force majeure clause as a result of a measure taken by the competent national authorities. Based on this provision, the principle of force majure shall be considered case-by-case for each circumstance. Based on case-by-case consideration; there are elements such as the appropriateness of the realization of the activity subject to the agreement in terms of time and space and its cost assessment.

In cases where epidemic diseases do not make the performance of the agreement absolutely impossible, excessive-performance difficulties regulated in the 138th article of the Turkish Code of Obligations, which regulates the fact that the performance of the agreement is not reasonably possible, shall be applied. In the case of excessive-performance difficulties, the parties, in general, can request that the agreement be made suitable for the new conditions. Still, if it is not possible to bring the agreement to the new terms, it may be requested to return from the agreement.

Bilgi ve değerlendirmelerinize sunulur.
Detaylı Bilgi İçin

Bu yazıyı paylaş:

Share on whatsapp
Share on facebook
Share on twitter
Share on linkedin
Share on email