Turkish law does not explicitly define "FM." However, article 136 of the Turkish Code of Obligations (TCO) regulates the consequences of the impossibility of performance, which is the counterpart concept of an FM event. Turkish jurisprudence and scholars overall agree to apply the TCO's impossibility of performance provisions to FM events. The bottom line is that the concept is clearly present in Turkish law.

A good number of sophisticated commercial contracts include FM clauses. There are conflicting opinions as to whether contractual FM provisions prevail over article 136 of the TCO. The majority of Turkish scholars argue that the provisions of article 136 of the TCO are supplementary rather than a mandatory rule of law, allowing parties to contractually agree otherwise and allow their provisions to prevail over article 136 of the TCO. We also share this opinion. However, there are various situations where the contractual provisions may end up being unenforceable and/or null and void, but we will not elaborate on those. In any event, this needs to be a case-specific review because there can be many other case-specific factors that may cause the provisions of the TCO outweigh the contractual provisions or vice-versa.

The FM clause may stipulate the prescribed form and time limitations to give notice about an FM event after it occurs.

We strongly recommend that merchants serve a notice of an FM event via notary, considering that notices or communications of default or termination/rescission between merchants must be made via notary, pursuant to the Turkish Commercial Code. In any event, this is also an ideal method for evidentiary purposes. This recommendation also applies to non-merchants, especially for practical evidentiary purposes.

Article 136 of the TCO requires the party invoking FM to notify the counterparty of the event without any delay and to mitigate losses. Otherwise, it will be liable for any losses suffered.

The consequences of an FM event will depend on the contractually agreed terms and the underlying situation.

If the contract does not address the consequences of FM events, Turkish law foresees that in a permanent FM event, the obligor will be discharged from its obligations under the contract. In a contract with reciprocal obligations, the obligor who has been discharged from its obligations (due to the impossibility of performance) cannot request the counterparty to perform its obligation. Additionally, when a party invoking FM is relieved from performance, it must refund the consideration it previously received from the counterparty, as per the unjust enrichment provisions of the TCO.

If the event preventing the parties from fulfilling their obligations is temporary, article 136 of the TCO becomes inapplicable because it only regulates the circumstances where the performance of the contract is permanently impossible (e.g. due to the permanent nature of the FM, the nature of the performance, etc.).

With regard to temporary FM events, the majority of Turkish scholars argue that parties' obligations are suspended for the duration of the FM event. However, once the FM event ends, the obligations become performable.

In cases where the purpose of the contract becomes moot mainly due to a temporary FM event, and it is not reasonable to expect any of the parties to be bound by the contract until the end of the temporary event pursuant to the good faith principle, the event also constitutes a permanent impossibility of the performance. Again, this must always be reviewed in a case-specific way; these are general/preliminary explanations and case-specific circumstances may alter this interpretation significantly.

Turkish law entitles parties to the contract to request the revision of the contract's provisions and conditions, if despite the parties' agreement, the circumstances existing at the time of the execution of the contract changed extraordinarily, resulting in the hardship of the performance of one's contractual obligations to the extent that the obligor cannot be expected to perform the contract in good faith.

If all of the conditions for the existence of hardship are fulfilled, the party affected by the hardship may request the revision of the contract pursuant to article 138 of the TCO. If the revision is impossible, and depending on the other specific circumstances, the rescission of the contract may come into question, as a last resort.