A global emergency has been declared by the World Health Organization because of the virus, which began spreading worldwide at the beginning of January 2020 and the new type of virus was named Covid-2019. By March 11, 2020, it was announced that the virus had been enlisted as a pandemic as a result of the increase in the number of people who died due to the virus and its global spread. In our very opinion, in order to determine the meaning of this situation and its developments in the current legal system, the concept of force majeure must be examined.
In our applicable law of obligations, we seek the “causal connection” element in order to someone to be held responsible for fault and for the damage produced by that defect. The causal connection is the essential requirement for the person’s responsibility to be mentioned. If there is no mention of the existence of a causal connection in the concrete case, then there can be no mention of the law of compensation within the framework of the law of obligations. The interruption of the causal connection, namely, “incompatible causal connection” can occur in two ways: the absence of compatibility or the discontinuation of compatibility.
If a cause ignored for some other reason, which is not or is not conducive for producing the kind of result that occurs in the concrete event, according to the general life experiences and the normal course of events, there is incompatible causal connection. The reasons that break the compatibility of connection are divided into three: force majeure, the fault of the sufferer and the fault of the third person.
When determining the limit of force majeure in legal systems, two different views are adopted: subjective and objective theory. According to subjective theory, in order to evaluate the situation that took place unusually in the concrete event as force majeure and thus to cut the compatibility of connection, there must be a situation that could not be prevented even if the utmost care was taken according to the circumstances in the concrete event in question. According to the objective theory, which stands out according to the subjective theory and is more adopted, the fact that the source of the situation is outside the business and activity of the responsible person makes that situation a force majeure.
Force majeure, with its controversial definitions, is, in short: an extraordinary event that occurs outside the activities and operations of the responsible or debtor, which leads to a breach of a general norm of conduct or of debt in an absolute and inevitable way, which cannot be predicted or resisted. In addition, this unusual situation in question must be a situation that cannot be mentioned in the establishment of the contract, which has subsequently emerged. According to this, it is clear that a global outbreak, which is certain to have originated elsewhere regardless of the legal relationship that people have established among themselves, will constitute force majeure and that the liability of persons for any damage caused by this unexpected force majeure cannot be mentioned, because it will be interrupt the compatibility of connection. That is, force majeure has to be an event outside the activities and operations of the defacer and in the prevailing opinion it is considered relative rather than absolute. Therefore, it is not possible to determine certain events as force majeure in advance and to exclude other events from this concept. In addition, the source of the damage must be that due to the event considered force majeure, the defacer violates a norm of conduct or fails to fulfill a contractual debt.
The “inevitability” criterion is also sought in our law to mention the existence of force majeure. The concept of inevitability also comprises the concepts of irresistibility and unavailability in terms of force majeure. At this point the difference between the unexpected event and force majeure is also revealed. In the unexpected event, inevitability is relative but in force majeure it is absolute and objective. Therefore, when force majeure assessment is carried out, the personal characteristics of the defacer are excluded from this scope.
As it can be seen, when the conditions of force majeure are fulfilled, there will no longer be any mention of one’s fault. Force majeure ends where the defect begins, the defect ends where the force majeure begins. In addition, due to the unforeseen and unavoidable force majeure that occurs after the establishment of the contract, it would be against the code of honesty (Articles 2 and 3 of the Turkish Civil Code) to expect the parties to perform their debts and fulfill their obligations as determined before this situation.
As a result, Covid-19 alone does not mean that the compatibility of connection between responsible and harm is interrupted by being regarded as force majeure. Because of the virus in question, we cannot say that the concepts of responsibility in the legal relationships established before the virus have altered and that its existence can no longer be mentioned because of this force majeure. Each concrete event must be evaluated within itself and determined whether the conditions in the law have been met. Force majeure must be the appropriate reason for a violation of the norm of conduct or a breach of debt. Only in this way can it be considered force majeure.
Due to Covid-19, the inability of the parties to perform their reciprocal debts may result in the impossibility of performance situation in the Turkish Code of Obligations. In such a case, as in the Article 136:
“An obligation is deemed extinguished where its performance is made impossible by circumstances not attributable to the obligor.
In a bilateral contract, the obligor thus released is liable for the consideration already received pursuant to the provisions on unjust enrichment and loses his counter-claim to the extent it has not yet been satisfied.
This does not apply to cases in which, by law or contractual aggrement, the risk passes to the obligee prior to performance.”
Accordingly, if there is an impossibility of performance due to Covid-19 in a debt relationship, the responsibility to take notification and necessary measures will also be on the agenda. There is also a separate situation for merchants. Because according to the Article 18 of Turkish Commercial Code, merchants who have to act as prudent merchant have to show the measure of care, is determined as heavier than non-merchants. The “prudent merchant measure” is of great importance in determining whether force majeure, which is the reason for the immaculate impossibility stated in the Article 136 of Turkish Code of Obligations, exists for merchants. As a result, a situation that constitutes force majeure for non-merchants may not constitute force majeure for merchants.
Covid-19, an epidemic that has spread worldwide, is clearly in significant danger given the spread rate in Turkey. In this case, the liabilities of the workers and employers may arise if they do not fulfill the obligations prescribed in the law. The main obligation of the employer in the working life is the obligation of protecting and caring for the employee. This obligation is reflected in the field of Occupational Health and Safety Section; it is the liability of the employer to making an effort to protect the health and body of the employee, warning, informing and protecting the employee against the risks originating from the workplace and the business itself, if risks cannot be eliminated, allocating the necessary protective equipment to the employee. For this reason, in accordance with the purpose of the Labor Code, within the scope of the responsibility principles introduced in the Turkish Code of Obligations and Turkish Commercial Code for merchants and non-merchants, only the rights of persons can be protected when each concrete event is evaluated within itself and force majeure is determined.
As a result, due to Covid-19, since the way people used to live has undergone a significant change, where the rules governing the relationship between people cannot predict the consequences, general provisions may need to be applied and amended in cases where the applicable law is insufficient.
Cemre Belçim GÖLBAŞI (Apprentice Attorney at Law)
Uçar Law & Consultancy Office
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