Hardship Clause
"How do hardship clauses work in Turkish commercial contracts?"
Quick Answer
Hardship clauses typically require renegotiation if unforeseeable events make performance excessively burdensome. Even without a clause, TCO No. 6098 Art. 138 (aşırı ifa güçlüğü) may allow the court to adapt the contract (uyarlama) or, in limited cases, terminate it.
Legal Basis Under TCO No. 6098: Garanti vs Kefalet
In Turkish law, hardship is addressed mainly through TCO No. 6098 Art. 138 (aşırı ifa güçlüğü). The concept differs from force majeure: hardship generally means performance is still possible but has become excessively burdensome due to an extraordinary, unforeseeable change not attributable to the affected party. Parties often add hardship clauses to define renegotiation steps, timelines, and outcomes before going to court.
Key Points to Remember
- Hardship (TBK Art. 138) applies when performance becomes excessively burdensome (not impossible)
- The change must be extraordinary/unforeseeable and not caused by the affected party
- Primary remedy is adaptation (uyarlama); termination is typically a last resort
- Drafting matters: define renegotiation triggers, notice, time limits, interim performance, and dispute path
Drafting Considerations
When drafting a hardship clause, define objective triggers (e.g., FX bands, input cost spikes, supply chain disruptions), the notice and evidence standard, a renegotiation timeline, and what happens if talks fail (mediation/arbitration/court). Also clarify whether performance continues during renegotiation and whether price revision, schedule extension, or partial termination is permitted.
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