ARE FORCE MAJEURE AND HARDSHIP THE SAME CONCEPT?
Although force majeure and hardship may arise from similar causes, they are distinct concepts in terms of their conditions of application and legal consequences. The distinction turns on how an extraordinary event arising after the conclusion of the agreement affects performance of the obligation.
In the ordinary course of commercial life, parties may wish, when concluding an agreement, to anticipate every adverse contingency that may arise and secure contractual protections against it; nevertheless, in practice, unforeseeable and external events beyond the parties’ control are frequently encountered. Epidemics, natural disasters, sudden exchange-rate fluctuations, wars, and political crises are among the most common examples.
In practice, all such events are commonly grouped under the concept of “force majeure” without examining their legal nature; when parties seek to be released from an agreement or to amend its terms, they first resort to this concept. However, the Turkish Code of Obligations (“TCO”) attaches different legal consequences to a force majeure event that renders performance of the agreement impossible and one that merely makes performance excessively onerous. In the former case, the provisions on impossibility of performance under Articles 136 and 137 of the TCO may apply; in the latter, provided that the applicable conditions are met, the hardship provisions under Article 138 of the TCO may come into question.
Drawing the boundary correctly between these two legal institutions is not merely an academic exercise; it is of considerable practical importance because it directly determines what claim the claimant/debtor may assert, what must be proven, and the fate of the obligation. In practice, the legal characterization of an event as force majeure or hardship may determine the remedies available to the parties and the outcome of the dispute.
Indeed, in its decision dated 06.10.2022 and numbered E.2019/1450, K.2022/1107, the 17th Civil Chamber of the Istanbul Regional Court of Appeal expressly contrasted these two legal institutions and made the following determination:
“For force majeure to exist, performance of the obligation must have become impossible. In such a case, the provisions on impossibility of performance set out in Articles 136 and 137 of the Turkish Code of Obligations shall apply… However, where performance of the obligation has merely become more onerous, the obligation does not cease by reliance on force majeure. In that case, adaptation of the agreement may be sought pursuant to Article 138 of the Turkish Code of Obligations, which governs hardship.”
This determination also forms the central axis of this article. Below, the statutory bases and elements of each institution will first be examined separately, followed by an assessment, by reference to recent decisions of the Regional Courts of Appeal, of how this distinction is applied in specific cases.
WHAT IS FORCE MAJEURE? WHAT ARE ITS ELEMENTS? (ARTICLES 136-137 OF THE TCO)
Force majeure refers to events that prevent performance of an obligation in accordance with the agreement and are external, unforeseeable, and unavoidable. Under the definition formulated in the decision of the General Assembly of the Court of Cassation dated 27.06.2018 and numbered E.2017/90, K.2018/1259 and adopted verbatim in the decision of the 43rd Civil Chamber of the Istanbul Regional Court of Appeal dated 05.03.2026, force majeure is “an extraordinary event occurring outside the activities and business of the person responsible or debtor, which leads absolutely and unavoidably to the breach of a general rule of conduct or of an obligation, and which cannot be foreseen or resisted. Natural disasters such as earthquakes, floods, fires, and epidemics constitute force majeure.”
Based on this definition, the following elements must all be present for an event to be characterized as force majeure:
- Externality: The event must originate from an external source entirely outside the debtor’s own activities and sphere of control,
- Unforeseeability: At the time the agreement was concluded, the event could not have been foreseen even by a reasonable and prudent merchant,
- Unavoidability: Neither the occurrence of the event nor its consequences could have been prevented by any measure available to the debtor,
- Causal link: There must be an adequate causal link between the force majeure event and the failure to perform the obligation in accordance with the agreement.
Characterizing an event as force majeure does not, in itself, cause the obligation to cease. The impact of the force majeure event on performance of the contractual obligation must be assessed separately. Where the event renders performance objectively impossible, the provisions on impossibility of performance under Articles 136 and 137 of the TCO may apply.
Impossibility of performance was defined in the decisions of the 43rd and 17th Civil Chambers of the Istanbul Regional Court of Appeal as “the impossibility of performing the obligation in kind without altering the content of the performance”. Where impossibility affects not merely the parties to the agreement but everyone, it is referred to as objective impossibility; where it arises solely from the debtor’s person or individual circumstances, it is referred to as subjective impossibility.
Pursuant to Article 136(1) of the TCO, “where performance of an obligation becomes impossible for reasons for which the debtor cannot be held responsible, the obligation shall cease.” The remainder of the same Article provides that, in agreements imposing reciprocal obligations, a party released from its obligation due to impossibility must return any performance received from the other party in accordance with the provisions on unjust enrichment and loses the right to demand performance that has not yet been rendered to it.
Nevertheless, the debtor must notify the creditor without delay that performance has become impossible and take the measures necessary to prevent an increase in loss. If the debtor breaches these obligations, it must compensate the resulting loss.
WHAT HAPPENS IF FORCE MAJEURE RENDERS PERFORMANCE OF ONLY PART OF THE OBLIGATION IMPOSSIBLE?
A force majeure event may render performance of only part, rather than all, of the obligation impossible. In such a case, the provisions on partial impossibility of performance under Article 137 of the TCO apply.
Pursuant to Article 137(1) of the TCO, “where performance of an obligation becomes partially impossible for reasons for which the debtor cannot be held responsible, the debtor shall be released only from the part of the obligation that has become impossible. However, if it is clear that the parties would not have concluded such an agreement had this partial impossibility been foreseen, the entire obligation shall cease.”
Accordingly, where partial impossibility of performance arises, as a rule only the part of the obligation that has become impossible shall cease. However, if it is clear that the parties would not have concluded the agreement at all had they foreseen the partial impossibility at the time of contracting, the entire obligation may cease.
In agreements imposing reciprocal obligations, where one party’s obligation becomes partially impossible, the other party’s counter-performance shall likewise cease to the same extent. However, where it is clear that the creditor would not consent to partial performance or the counter-performance is indivisible, the provisions on total impossibility may apply.
Indeed, in its decision dated 05.03.2026 and numbered E.2022/1457, K.2026/411, the 43rd Civil Chamber of the Istanbul Regional Court of Appeal, it was stated that “In view of the severity of the current epidemic, this may, within the law of contracts, be regarded as an external event beyond the debtor’s control resulting in breach of the obligation, namely force majeure, and it has been accepted that the Covid-19 pandemic constitutes force majeure…” Thus, the Covid-19 pandemic was accepted as constituting force majeure in relation to the specific contractual relationship. Taking into account that performance of the agreement had become impossible only for a certain period, the Chamber concluded that the agreement ceased, due to impossibility of performance, in respect of its remaining nine-month term.
This decision is significant in demonstrating that a force majeure event may render performance impossible not in respect of the entire agreement, but only for a particular period or performance, and that in such a case the provisions on partial impossibility of performance under Article 137 of the TCO may apply.
WHAT IS HARDSHIP? WHAT ARE ITS ELEMENTS? (ARTICLE 138 OF THE TCO)
Hardship is a legal institution covering circumstances in which performance has not become impossible, but the balance between the performances has been disrupted to the debtor’s detriment to an extent contrary to the principle of good faith; in legal doctrine and practice, it is also referred to as the “collapse of the basis of the transaction.” Article 138(1) of the TCO provides as follows: “Where an extraordinary circumstance that was not and could not reasonably have been foreseen by the parties at the time the agreement was concluded arises for a reason not attributable to the debtor and alters the circumstances existing at the time of conclusion to the detriment of the debtor to such an extent that demanding performance would be contrary to the principle of good faith, and provided that the debtor has not yet performed the obligation or has performed it while reserving the rights arising from hardship, the debtor may request the court to adapt the agreement to the new circumstances and, if this is not possible, may rescind the agreement. In agreements of continuous performance, the debtor shall, as a rule, exercise the right of termination instead of rescission.”
It is consistently accepted in both legal doctrine and judicial decisions that the following four conditions must all be met for the hardship provisions to apply:
- An extraordinary circumstance must arise that was not, and could not reasonably have been expected to be, foreseen by the parties when the agreement was concluded,
- The circumstance must not be attributable to the debtor,
- The circumstance must alter the facts existing when the agreement was concluded to the detriment of the debtor to such an extent that demanding performance would be contrary to the principle of good faith,
- The debtor must not yet have performed the obligation or, if it has, must have done so while expressly reserving the rights arising from hardship.
Where all four conditions are met, it is accepted that the debtor may first request the court to adapt the agreement to the new circumstances and, if this is not possible, rescind the agreement or, in agreements of continuous performance, terminate it. As is evident, unlike in force majeure, the obligation does not cease automatically; the debtor must pursue the remedies provided under Article 138 of the TCO.
As emphasized in the decision of the 6th Civil Chamber of the Court of Cassation numbered E.2023/4048, K.2024/4238 and cited in the decision of the 7th Civil Chamber of the Sakarya Regional Court of Appeal dated 12.02.2025, “Impossibility of performance and hardship are distinct… If price increases have occurred beyond foreseeable limits and the balance between performances has been excessively disrupted, hardship may arise under Article 138 of the TCO; however, adaptation could have been sought from the court, whereas the claimant declared the agreement terminated without pursuing that remedy.”
This passage establishes that hardship differs from force majeure in terms of the available remedies and legal consequences, and that a debtor seeking to rely on hardship must first request adaptation of the agreement rather than proceeding directly to termination.
Comparison Table: Force Majeure and Hardship
| Criterion | Force Majeure | Hardship |
| Principal feature | An external, unforeseeable, and unavoidable extraordinary event prevents performance of the obligation. | Performance remains possible despite an extraordinary circumstance, but becomes excessively onerous for the debtor. |
| Status of the performance | Where force majeure results in impossibility of performance, the performance owed cannot be rendered in kind. | Performance remains possible; however, the balance between the performances has been disrupted to the debtor’s detriment to an extent contrary to the principle of good faith. |
| Legal consequence | If the requirements of impossibility of performance are met, the obligation may cease in whole or in part. | The obligation does not cease automatically; adaptation of the agreement, or if adaptation is not possible, rescission or, in agreements of continuous performance, termination may come into question. |
| Applicable provisions | Where force majeure results in impossibility of performance, Articles 136 and 137 of the TCO may apply. | Article 138 of the TCO applies. |
| Matters to be proven | The existence of the force majeure event, the fact that it rendered performance impossible, and the causal link between them must be proven. | It must be proven that the extraordinary circumstance excessively disrupted the balance between the performances to the debtor’s detriment and that the other requirements of Article 138 of the TCO were met. |
| Typical example | Performance becoming impossible due to an earthquake, epidemic, war, or official prohibition on operations. | Unforeseeable exchange-rate, raw-material, or labor-cost increases excessively disrupting the balance between the performances. |
| Debtor’s conduct | The debtor must notify the creditor of the impossibility without delay and take the measures necessary to prevent an increase in loss. | The debtor must either not yet have performed or must have performed while reserving its rights arising from hardship. |
| Available remedy | As a rule, a constitutive judicial decision is not required for the obligation to cease due to impossibility of performance. | The debtor may first request adaptation of the agreement; if adaptation is not possible, rescission or, in agreements of continuous performance, termination may come into question. |
WHY IS THE DISTINCTION BETWEEN FORCE MAJEURE AND HARDSHIP IMPORTANT IN CONTRACTS?
The distinction between force majeure and hardship is important for correctly identifying the rights and obligations of the parties at the drafting and performance stages of an agreement. Particularly in long-term agreements, regulating in advance the effects on the parties’ performances of extraordinary events that may arise after the agreement is concluded may help prevent future disputes.
Force majeure clauses generally regulate which events will constitute force majeure, the notification procedure to be followed when such an event arises, whether the parties’ obligations will be suspended for a specified period, and whether the agreement may be terminated if the force majeure event continues.
Nevertheless, the inclusion of an event in the agreement as a force majeure event does not mean that the obligation will automatically cease or that either party will acquire an immediate right of termination upon its occurrence. The effect of the event on performance of the specific contractual obligation must be assessed separately. If a force majeure event renders performance impossible for reasons for which the debtor cannot be held responsible, Articles 136 and 137 of the TCO may apply; if it does not render performance impossible but makes it excessively onerous for the debtor, Article 138 of the TCO may apply, provided that the relevant conditions are met.
Indeed, in the dispute underlying the decision of the 7th Civil Chamber of the Sakarya Regional Court of Appeal dated 12.02.2025 and numbered E.2023/1802, K.2025/261, although the agreement between the parties listed epidemics among force majeure events, it was held that the cost increases following the Covid-19 pandemic had not rendered performance of the agreement impossible. The decision stated that “…Although the claimant asserts that the epidemic constitutes force majeure, the reasons relied upon, such as increased costs due to the rise in the exchange rate and the inability to find rental vehicles, do not prevent performance of the agreement; rather, the allegation is that prices rose excessively in the epidemic environment and the resulting costs could not be met. Accordingly, in the present case, it cannot be said that force majeure existed or that there was total or partial impossibility of performance as a consequence…”, thereby establishing that merely designating an event as force majeure in the agreement does not, by itself, result in impossibility of performance.
Accordingly, when drafting force majeure clauses, it is important not merely to list events that may constitute force majeure, but also to regulate clearly the impact of the event on contractual performances, the parties’ notification obligations, the period for which performance will be suspended, and the circumstances in which the agreement may be terminated. Similarly, mechanisms for adapting the agreement to changed circumstances should also be considered, taking into account that extraordinary circumstances may not make performance impossible but may render it excessively onerous in economic terms. In this regard, the parties may separately stipulate the principles under which the contract price or other terms of the agreement will be renegotiated or adapted if specified cost increases, exchange-rate movements, or other economic developments occur.
WHO BEARS THE BURDEN OF PROOF IN CASES OF FORCE MAJEURE AND HARDSHIP?
A party relying on force majeure or hardship cannot merely assert that an extraordinary event has occurred; it must also demonstrate the event’s effect on performance of the contractual obligation and that the requirements of the legal institution relied upon have been met in the specific case.
Where force majeure is invoked, in addition to establishing that the event was external, unforeseeable, and unavoidable, it must be proven that performance became impossible as a result of the event and that there is an adequate causal link between the event and the impossibility of performance. Depending on the nature of the event, decisions of public authorities, administrative regulations, technical reports, expert opinions, and similar evidence may be relevant.
Where hardship is invoked, the debtor must establish that the extraordinary circumstance that arose after the conclusion of the agreement was not attributable to it and altered the circumstances existing when the agreement was concluded to its detriment to such an extent that demanding performance would be contrary to the principle of good faith. Particularly in disputes based on changes in economic conditions, merely asserting an increase in exchange rates or costs is insufficient; the concrete impact of those changes on the balance between the contractual performances must be demonstrated by financial and commercial data.
Accordingly, the distinction between force majeure and hardship is also important in determining what must be proven. For force majeure, the central issue is whether the event rendered performance impossible; for hardship, the central issues are the extent to which the extraordinary circumstance altered the contractual balance to the debtor’s detriment and whether continued performance on the same terms became contrary to the principle of good faith.
CONCLUSION
Although force majeure and hardship may arise from similar extraordinary events, they differ in terms of the event’s effect on performance of the contractual obligation and their legal consequences. Accordingly, events arising after the conclusion of the agreement, such as an epidemic, natural disaster, war, economic crisis, or sudden cost increase cannot, by themselves, be characterized as force majeure or hardship.
Where a force majeure event renders performance impossible for reasons for which the debtor cannot be held responsible, Articles 136 and 137 of the TCO may apply; where performance remains possible but the circumstances existing when the agreement was concluded have changed to the debtor’s detriment to such an extent that continued performance would be contrary to the principle of good faith, hardship may arise subject to the conditions set out in Article 138 of the TCO. This distinction directly affects not only the fate of the obligation but also the remedies available to the parties and the matters that must be proven.
In this regard, when drafting agreements, the impact of extraordinary circumstances on the contractual relationship should be regulated as clearly as possible; in addition to identifying events that may constitute force majeure, the conditions governing notification obligations, suspension of performance, and termination of the agreement should be specified. Nevertheless, irrespective of the contractual provisions, the impact of the event on performance of the specific contractual obligation and the legal provisions applicable to it must be assessed separately in light of the circumstances of each case.
FREQUENTLY ASKED QUESTIONS (FAQ)
What is the principal difference between force majeure and hardship?
In force majeure, performance of the obligation becomes impossible due to the extraordinary event. In hardship, performance remains possible, but changed circumstances make it unreasonably onerous for the debtor.
Does an increase in costs or exchange rates constitute force majeure?
As a rule, no. As emphasized in the decision of the 7th Civil Chamber of the Sakarya Regional Court of Appeal, an increase in costs or exchange rates does not result in impossibility of performance due to force majeure unless it renders performance of the obligation impossible.
Does an epidemic constitute force majeure in every case?
No. It is not the epidemic itself, but the specific official measures adopted because of the epidemic and actually preventing performance, such as suspension of operations or closure orders, that are decisive in the force majeure assessment.
Can a party relying on hardship terminate the agreement directly?
No. Pursuant to Article 138 of the TCO, the debtor must first request the court to adapt the agreement; if adaptation is not possible, the debtor may rescind the agreement or, in agreements of continuous performance, exercise the right of termination.
Does performing without a reservation of rights result in loss of rights?
To request adaptation under Article 138 of the TCO, the debtor must either not yet have performed the obligation or, if it has performed, must have reserved its rights arising from hardship. Accordingly, performance without an express reservation may affect the ability to rely on Article 138 of the TCO.
May a court characterize differently an event described by the parties as “force majeure”?
Yes. Irrespective of the designation used by the parties, the court determines the legal nature of the event independently in light of the circumstances and evidence of the specific case.
What evidence is required to prove a force majeure claim?
In the decisions examined, force majeure was proven by means of letters from public authorities, expert reports (meteorological, sectoral, and financial), and technical data. A party’s unsupported statement alone was not considered sufficient to prove force majeure.
Is the threshold of foreseeability assessed differently for merchants?
Yes. As emphasized in the decision of the 7th Civil Chamber of the Sakarya Regional Court of Appeal, merchants are expected to act by anticipating ordinary commercial risks such as price fluctuations; the materialization of such risks does not, by itself, constitute force majeure.
In the event of partial impossibility of performance, does the entire agreement cease or only part of it?
Pursuant to Article 137 of the TCO, as a rule only the part that has become impossible ceases. In the decision of the 43rd Civil Chamber of the Istanbul Regional Court of Appeal, reimbursement was ordered for the period during which use was impossible, and the agreement was not held to have ceased in its entirety.
