Introduction
Force majeure and hardship clauses are among the most important risk allocation mechanisms in international contracts under Turkish law. In cross-border commercial relationships, parties may face unexpected events that prevent performance, delay delivery, increase costs, disrupt supply chains, restrict payments, close borders, block customs clearance, trigger sanctions, or make performance commercially unreasonable. War, pandemic, natural disasters, strikes, export bans, currency shocks, port closures, cyberattacks, government measures and logistics crises may all affect international contracts connected with Turkey.
For Turkish and foreign companies, the key legal question is not merely whether an unexpected event occurred. The real issue is whether that event excuses non-performance, suspends obligations, allows contract adaptation, justifies termination, or only creates a commercial difficulty that the affected party must bear. Turkish law distinguishes between impossibility of performance and excessive difficulty of performance, commonly referred to as hardship. This distinction is crucial.
The Turkish Code of Obligations No. 6098 does not operate on a single broad doctrine that automatically excuses every difficult contract. Article 136 regulates impossibility of performance and provides that if performance becomes impossible for reasons not attributable to the debtor, the obligation is terminated. Article 137 regulates partial impossibility. Article 138 regulates excessive difficulty of performance and allows the debtor, under strict conditions, to request adaptation of the contract or rescission if adaptation is not possible.
In international sale of goods contracts, the CISG may also be relevant. Turkey signed the CISG on 7 July 2010, and it entered into force for Turkey on 1 August 2011. Under CISG Article 79, exemption from liability is subject to strict requirements, and a party must generally prove that the impediment was beyond its control, unforeseeable and unavoidable.
This article explains force majeure and hardship under Turkish law, their legal consequences, the role of contractual clauses, the interaction with CISG, and practical drafting strategies for international commercial contracts.
1. What Is Force Majeure under Turkish Law?
Force majeure generally refers to an extraordinary event that is external, unforeseeable, unavoidable and beyond the control of the affected party, making performance impossible or seriously preventing performance. In Turkish law, force majeure is not limited to a fixed statutory list. Its consequences are usually assessed through the rules on impossibility of performance, default, causation, fault, good faith and the specific contract wording.
Typical examples may include earthquakes, floods, fires, epidemics, war, military conflict, terrorism, embargoes, sanctions, government prohibitions, export bans, import restrictions, port closures, transport blockages, cyberattacks, strikes, lockouts and severe supply chain disruptions. However, not every crisis is automatically force majeure. The event must have a real effect on the specific contractual obligation.
For example, if a Turkish exporter cannot ship goods because the government bans exports of that product, force majeure may be relevant. If a supplier merely suffers reduced profit because freight costs increased, this may not be force majeure unless the contract defines such cost increase as a force majeure event or the circumstances amount to hardship under Article 138.
In Turkish practice, the contract clause is extremely important. If the parties define force majeure broadly and include events such as pandemics, sanctions, cyberattacks, shortage of raw materials, port congestion or extreme price increases, the court or arbitral tribunal will first examine the wording of the clause. If the contract is silent or vague, Turkish statutory rules and general principles will become more important.
2. Impossibility of Performance: Turkish Code of Obligations Article 136
The primary statutory rule connected with force majeure is Article 136 of the Turkish Code of Obligations. This provision states that if the performance of an obligation becomes impossible due to reasons for which the debtor cannot be held responsible, the obligation terminates.
This rule is strict. It applies where performance is genuinely impossible, not merely more expensive, burdensome or inconvenient. The impossibility must arise after the contract is concluded, must not be attributable to the debtor, and must prevent the specific obligation from being performed.
For example, if a unique item to be delivered is destroyed by an unforeseeable natural disaster without the seller’s fault, performance may become impossible. If an export ban legally prevents shipment of the contracted goods, performance may also become legally impossible. If a factory is temporarily closed due to a government order, the result may depend on whether the obligation is permanently impossible, temporarily impossible or merely delayed.
Article 136 also has consequences for reciprocal contracts. If one party is released from its obligation due to impossibility, it must generally return what it has already received under unjust enrichment principles, and it loses the right to claim the counter-performance unless statutory or contractual exceptions apply. This is especially important in advance payment contracts.
3. Partial Impossibility: Turkish Code of Obligations Article 137
Article 137 of the Turkish Code of Obligations regulates partial impossibility. If performance becomes partially impossible for reasons not attributable to the debtor, the debtor is released only from the impossible part. However, if it is clear that the parties would not have concluded the contract had they foreseen the partial impossibility, the entire obligation may terminate.
Partial impossibility is common in international trade. A seller may be able to deliver part of the goods but not the entire quantity. A contractor may be able to complete certain works but not a specific imported component. A logistics company may be able to transport goods to an alternative port but not the agreed destination.
The contract should regulate whether partial delivery is allowed, whether the buyer may reject partial performance, whether payment is reduced proportionally, and whether the unaffected party may terminate the whole contract. Without clear wording, disputes may arise over whether partial performance preserves or destroys the commercial purpose of the contract.
4. Temporary Impossibility and Delay
Not every force majeure event permanently terminates an obligation. Some events temporarily prevent performance. For example, a port may close for two weeks, a customs system may be suspended temporarily, a strike may delay shipment, or a pandemic measure may interrupt production for a limited period.
Turkish law does not treat every temporary impediment as automatic termination. The legal consequence depends on the duration of the impediment, the nature of the contract, the importance of timing, the parties’ expectations and the force majeure clause. In time-sensitive contracts, even temporary delay may destroy the commercial purpose. In long-term supply contracts, temporary suspension may be more appropriate.
A well-drafted force majeure clause should therefore state whether obligations are suspended during the force majeure period, whether deadlines are extended, whether payment obligations continue, and when either party may terminate if the event continues beyond a specified period.
5. What Is Hardship under Turkish Law?
Hardship differs from force majeure. Force majeure is generally linked to impossibility or prevention of performance. Hardship applies where performance remains possible but has become excessively burdensome due to extraordinary and unforeseeable events.
The statutory basis for hardship is Article 138 of the Turkish Code of Obligations, titled “excessive difficulty of performance.” This provision allows the debtor to request adaptation of the contract to new conditions, or rescission if adaptation is not possible, when an extraordinary situation not foreseen and not expected to be foreseen at the time of the contract arises for a reason not attributable to the debtor and changes the circumstances against the debtor in a way that makes performance contrary to good faith.
Recent Turkish legal commentary summarizes hardship as a situation where extraordinary post-contract developments seriously disrupt the balance between contractual obligations to the detriment of the debtor, so that requiring performance would violate good faith; the remedy is adaptation or, as a last resort, termination.
Examples may include extreme inflation, severe currency collapse, extraordinary increases in raw material prices, unexpected sanctions, dramatic changes in transport costs, supply chain breakdowns, or government measures that do not make performance impossible but fundamentally alter the contract’s economic equilibrium.
6. Conditions for Hardship under Article 138
Article 138 is not a general escape clause for bad bargains. Turkish law requires strict conditions.
First, an extraordinary event must occur after the contract is concluded.
Second, the event must not have been foreseen or reasonably foreseeable at the time of contract formation.
Third, the event must not be attributable to the debtor.
Fourth, the event must change the existing circumstances against the debtor so severely that demanding performance would be contrary to good faith.
Fifth, the debtor must not yet have performed the obligation, or must have performed by reserving its rights arising from excessive difficulty.
This final condition is particularly important. A party that performs without reservation may later face difficulty claiming adaptation. Therefore, if a party believes that hardship exists but must continue performance temporarily, it should expressly reserve its rights in written notices, invoices, payment communications or contractual correspondence.
7. Legal Consequences of Hardship
If Article 138 conditions are satisfied, the debtor may request the court to adapt the contract to the new circumstances. If adaptation is not possible, the debtor may rescind the contract. In continuous performance contracts, termination may be more appropriate than rescission because past performance cannot always be undone.
Adaptation may include price adjustment, extension of time, modification of delivery obligations, change of payment schedule, revision of quantity commitments, or adjustment of contractual burdens. Turkish courts generally evaluate the specific contract, economic balance, evidence, conduct of the parties and principle of good faith.
However, parties should not assume that a court will automatically rewrite the contract. Hardship claims require strong evidence. The claimant should prove the extraordinary event, unforeseeability, causal link, economic disruption and unfairness of insisting on original performance.
8. Force Majeure versus Hardship
The difference between force majeure and hardship is central.
Force majeure generally concerns impossibility or prevention of performance. The legal result may be termination of the obligation, suspension of performance, extension of time or contractual termination depending on the clause and circumstances.
Hardship concerns excessive difficulty, not impossibility. Performance is still technically possible, but the economic balance has been radically disrupted. The primary remedy is adaptation, not automatic release from the obligation.
For example, if a legal export ban makes shipment impossible, force majeure or impossibility may be relevant. If shipment is still possible but freight costs increase fivefold due to regional conflict, hardship may be more appropriate. If a currency crisis makes payment more expensive for one party, hardship may be argued only if the statutory conditions are met and the risk was not contractually allocated.
The distinction matters because a party invoking the wrong doctrine may weaken its position. In a commercial dispute, a party should analyze whether the event made performance impossible, temporarily prevented performance, delayed performance, or merely made performance more burdensome.
9. Importance of Contractual Force Majeure Clauses
International contracts should not rely only on statutory rules. A clear force majeure clause provides predictability and reduces litigation risk.
A strong clause should define:
The events that qualify as force majeure.
Whether the list is exhaustive or illustrative.
Notice requirements.
Evidence requirements.
Mitigation duties.
Suspension of obligations.
Extension of time.
Effect on payment obligations.
Allocation of additional costs.
Right to terminate after prolonged force majeure.
Effect on liquidated damages or penalties.
Interaction with subcontractors and suppliers.
Procedure for resuming performance.
The clause should be tailored to the transaction. A construction contract, commodity sale, software agreement, logistics contract, energy supply agreement and distribution contract do not face identical risks. A generic clause may fail to cover the event that matters most.
10. Common Force Majeure Events in International Contracts
Modern international contracts often include a broad list of force majeure events. These may include:
War and armed conflict.
Terrorism and civil unrest.
Sanctions, embargoes and export bans.
Government acts and regulatory prohibitions.
Pandemics and epidemics.
Natural disasters and earthquakes.
Fire, flood and explosion.
Port closures and transport interruption.
Cyberattacks and system failures.
Labor strikes and lockouts.
Shortage of raw materials.
Energy supply interruptions.
Customs restrictions.
Acts of public authorities.
However, listing an event is not enough. The affected party must usually show that the event caused non-performance or delay. If a war occurs in a distant country but does not affect the contract, it will not excuse performance. If a pandemic exists but the supplier could have performed through alternative means, force majeure may be rejected.
11. Notice Requirements
Notice is one of the most important procedural elements of force majeure and hardship. The affected party should notify the other party promptly, describe the event, explain its effect on performance, provide evidence, estimate expected delay, and state what mitigation steps are being taken.
The contract should specify the notice deadline. For example, it may require notice within five, seven or ten business days after the affected party becomes aware of the event. Failure to provide timely notice may result in loss of rights or liability for avoidable damages.
Notices should be written and verifiable. Email may be useful, but for high-value contracts, courier, registered mail, notary notice or other formal channels may be appropriate. The contract should define valid notice addresses and deemed receipt rules.
For hardship, written reservation of rights is especially important if the party continues performance while claiming excessive difficulty under Article 138.
12. Mitigation Duty
A party invoking force majeure or hardship must generally act in good faith and mitigate the effects of the event. It should explore alternative suppliers, routes, production methods, logistics options, substitute materials, reasonable cost-saving measures and temporary solutions.
For example, if one port is closed but another port is available at reasonable cost, the seller may not be able to rely entirely on force majeure. If a supplier fails but alternative suppliers exist, the affected party must show why alternative procurement was impossible or commercially unreasonable.
Mitigation is highly fact-specific. The contract should define the level of effort required: reasonable efforts, best efforts, commercially reasonable efforts, or strict obligation to use alternatives. These phrases should not be used casually because they affect the burden on the affected party.
13. Payment Obligations and Force Majeure
A frequent dispute is whether force majeure excuses payment obligations. Generally, payment is not physically impossible in the same way as delivery or construction work. Therefore, a debtor who simply lacks funds may not be able to invoke force majeure. However, sanctions, banking restrictions, payment system shutdowns, capital controls or legal prohibitions may affect payment.
The contract should clearly state whether force majeure suspends payment obligations, whether already accrued payments remain due, whether interest continues, and whether non-payment due to banking restrictions is treated separately.
In international transactions, payment risk should also be managed through letters of credit, bank guarantees, escrow, advance payment guarantees or other payment security tools rather than relying only on force majeure.
14. Hardship and Currency Fluctuation
Currency fluctuation is one of the most common hardship arguments in Turkey-related contracts. However, currency depreciation or inflation does not automatically justify adaptation under Article 138. The claimant must show that the event was extraordinary, unforeseeable, not attributable to the debtor, and changed the contractual balance so severely that performance as agreed would violate good faith.
This is difficult where the contract itself allocates currency risk. If the parties agreed to payment in a foreign currency, a Turkish lira debtor may be deemed to have accepted exchange rate risk unless the change is truly extraordinary and beyond normal commercial risk. If the contract includes a price adjustment clause, indexation mechanism or hardship clause, the analysis may differ.
In long-term contracts, parties should not leave currency risk to litigation. They should include price revision, indexation, renegotiation or hardship mechanisms that clearly address inflation, exchange rates, raw material costs and transport costs.
15. Hardship Clauses in International Contracts
A hardship clause is different from a force majeure clause. It does not necessarily excuse performance. Instead, it creates a process for renegotiation, adaptation or termination if an extraordinary event fundamentally changes the economic equilibrium of the contract.
A strong hardship clause should define:
What qualifies as hardship.
Threshold of cost increase or revenue decrease.
Whether currency fluctuation is included.
Whether sanctions or supply chain disruption are included.
Notice procedure.
Duty to continue performance during negotiations.
Renegotiation period.
Expert determination or price adjustment mechanism.
Court or arbitral tribunal adaptation power.
Termination right if renegotiation fails.
Allocation of costs during hardship.
For example, a long-term supply contract may state that if raw material costs increase by more than 30% due to events beyond the parties’ control, the parties must renegotiate prices in good faith for 30 days, and if no agreement is reached, either party may refer the issue to expert determination or terminate future deliveries.
16. Force Majeure and CISG Article 79
In international sale of goods contracts involving Turkish parties, the CISG may apply unless excluded. Turkey has been a CISG contracting state since 1 August 2011.
CISG Article 79 provides an exemption from damages if a party proves that failure to perform was due to an impediment beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of contract conclusion or avoided or overcome it or its consequences. Legal commentary emphasizes that the CISG Article 79 defense is strict and that operational issues such as machine failure or personnel negligence generally do not qualify.
This is important because CISG Article 79 does not automatically terminate the contract or excuse all remedies. It primarily exempts the non-performing party from liability in damages under certain conditions. Other remedies, such as avoidance, price reduction or requiring performance, may need separate analysis under the CISG.
Therefore, in international sale of goods contracts, the force majeure clause should expressly address the relationship between the clause, CISG Article 79, termination rights, damages exemption and buyer/seller remedies.
17. Should the CISG Be Excluded?
Whether to exclude the CISG depends on the transaction. The CISG provides an internationally recognized framework for sale of goods contracts, but parties may prefer Turkish domestic law, English law, Swiss law or another system. If parties do not want CISG to apply, they should expressly exclude it.
A clause may state:
“The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.”
If the CISG is intended to apply, the contract should still include a detailed force majeure and hardship clause because Article 79 may not answer all commercial questions, especially regarding renegotiation, price adaptation, suspension, extension of time and long-term supply obligations.
18. Force Majeure in Construction Contracts
Construction contracts are particularly vulnerable to force majeure and hardship events. War, earthquakes, supply chain disruption, import restrictions, labor shortages, public authority delays, energy interruptions, extreme weather and price increases may affect project completion.
A construction force majeure clause should address:
Extension of time.
Cost compensation.
Suspension of works.
Protection of site.
Subcontractor force majeure.
Import delays.
Permit delays.
Material shortages.
Employer payment obligations.
Termination after prolonged suspension.
Effect on delay penalties.
Hardship in construction contracts is often linked to extreme cost escalation. If steel, cement, energy, fuel or imported equipment prices increase dramatically, the contractor may seek price adjustment. However, unless the contract contains an escalation mechanism or Article 138 conditions are met, the contractor may bear commercial risk.
19. Force Majeure in Supply and Distribution Agreements
Long-term supply and distribution agreements should include both force majeure and hardship provisions. These contracts often depend on continuous production, stable pricing, logistics routes, customs clearance and market demand.
A supplier may invoke force majeure if production is legally prohibited, raw material import is banned or transport routes are blocked. A distributor may invoke hardship if market conditions collapse or regulatory changes make resale commercially unreasonable. However, each case depends on causation, foreseeability and contractual allocation of risk.
The contract should address whether minimum purchase obligations are suspended during force majeure, whether exclusivity continues, whether sales targets are reduced, and whether either party may source alternative products temporarily.
20. Force Majeure in Logistics and Shipping Contracts
Logistics contracts face unique risks: port closure, vessel delay, container shortage, customs inspections, border restrictions, war zones, strikes, fuel shortages and sanctions.
A logistics force majeure clause should specify whether the carrier or freight forwarder is responsible for rerouting, additional freight costs, storage, demurrage, customs delay, transshipment, cargo insurance and notice to cargo owners.
International traders should align the logistics contract with the sale contract. If the seller promises delivery by a fixed date but the logistics provider excludes liability for port congestion, the seller may remain exposed to buyer claims unless the sale contract contains corresponding force majeure relief.
21. Sanctions, Embargoes and Government Measures
Sanctions and government measures are increasingly important in international contracts. A party may be prohibited from supplying goods, receiving payment, shipping to a country, dealing with a counterparty, using a bank, or exporting technology.
A sanctions clause should operate alongside force majeure. It should permit suspension or termination where performance would violate applicable sanctions, export controls or mandatory government measures. It should also require screening of counterparties, end-users, vessels, banks and destination countries.
If sanctions merely increase cost but do not prohibit performance, the issue may fall under hardship rather than force majeure. The contract should define this distinction clearly.
22. Evidence Required to Prove Force Majeure or Hardship
A party invoking force majeure or hardship should collect evidence immediately. Useful evidence may include:
Government decisions.
Customs notices.
Port closure announcements.
Sanctions regulations.
Transport disruption notices.
Supplier correspondence.
Expert reports.
Price indexes.
Freight quotations.
Banking restriction notices.
Insurance reports.
Force majeure certificates.
Photographs or technical reports.
Internal mitigation records.
Financial analysis.
Evidence must show not only that the event occurred, but also that it affected the specific contractual obligation. A general reference to war, pandemic or inflation is usually insufficient.
23. Force Majeure Certificates
In some international trade contexts, chambers of commerce or public authorities may issue force majeure certificates. These certificates may help prove that a certain event occurred or affected trade. However, a certificate is not automatically decisive under Turkish law. The court or arbitral tribunal will still examine the contract, causation, foreseeability and legal consequences.
Therefore, parties should not rely solely on a certificate. They should provide full evidence of how the event prevented or disrupted performance.
24. Drafting Sample: Force Majeure Clause
A practical clause may read:
“Neither party shall be liable for failure or delay in performing its obligations, except payment obligations already accrued, to the extent such failure or delay is caused by an event beyond its reasonable control, including but not limited to war, armed conflict, terrorism, natural disaster, earthquake, flood, epidemic, pandemic, government prohibition, sanctions, embargo, export or import ban, port closure, customs restriction, strike, cyberattack or interruption of transport networks, provided that the affected party gives written notice within seven business days, uses commercially reasonable efforts to mitigate the effects, and resumes performance as soon as reasonably possible. If the force majeure event continues for more than sixty days, either party may terminate the affected part of the contract by written notice.”
This clause should be adapted to the transaction. Payment obligations, termination periods, cost allocation and mitigation duties may need different wording.
25. Drafting Sample: Hardship Clause
A practical hardship clause may read:
“If, after the conclusion of this Agreement, an extraordinary event beyond the control of the affected party, unforeseeable at the time of signing and not attributable to such party, fundamentally alters the economic equilibrium of this Agreement and renders performance excessively burdensome contrary to good faith, the affected party may request renegotiation by written notice. The parties shall negotiate in good faith for thirty days. If no agreement is reached, either party may request adaptation of the Agreement by the competent court or arbitral tribunal, or terminate the Agreement if adaptation is not reasonably possible.”
This clause should be coordinated with Article 138, governing law, arbitration and pricing provisions.
26. Common Drafting Mistakes
Common mistakes include:
Using a generic force majeure clause without defining events.
Failing to include sanctions, export bans or logistics disruptions.
Confusing force majeure with hardship.
Failing to regulate notice deadlines.
Failing to address payment obligations.
Failing to define mitigation duties.
Failing to provide termination rights after prolonged force majeure.
Ignoring CISG Article 79 in sale of goods contracts.
Not reserving rights during performance under hardship.
Not linking hardship to price adjustment or renegotiation.
Using inconsistent clauses across purchase orders and framework agreements.
Failing to coordinate force majeure with liquidated damages.
These mistakes can turn an unexpected event into a major litigation risk.
27. Practical Checklist for International Contracts under Turkish Law
Before signing an international contract connected with Turkey, parties should ask:
Which law governs the contract?
Does the CISG apply?
What events qualify as force majeure?
What events qualify as hardship?
Are sanctions and government measures covered?
Are pandemics and supply chain disruptions covered?
Are currency and inflation risks allocated?
Is there a notice deadline?
Must performance continue during renegotiation?
Are payment obligations suspended?
Are liquidated damages suspended?
When can the contract be terminated?
Can a court or arbitral tribunal adapt the contract?
What evidence must be provided?
Are subcontractor or supplier failures covered?
Is there a duty to use alternative sources or routes?
These questions should be answered in the contract, not left to future dispute.
Conclusion
Force majeure and hardship clauses in international contracts under Turkish law are essential tools for managing extraordinary commercial risk. Turkish law distinguishes between impossibility of performance under Article 136 and excessive difficulty of performance under Article 138. Impossibility may terminate the obligation if performance becomes impossible for reasons not attributable to the debtor. Hardship may allow adaptation or termination where extraordinary unforeseeable events fundamentally disrupt the contractual balance contrary to good faith.
In international sale of goods contracts, CISG Article 79 may also apply and provides a strict exemption framework for impediments beyond a party’s control. Because Turkish law, CISG and contractual clauses may interact, parties should not rely on generic boilerplate language.
A strong contract should separately regulate force majeure and hardship, define covered events, impose notice and mitigation duties, address payment obligations, provide suspension and termination mechanisms, and specify whether courts or arbitral tribunals may adapt the contract. In long-term international contracts, hardship clauses are particularly important for inflation, currency fluctuation, sanctions, logistics crises and raw material price shocks.
The best time to manage extraordinary risk is before the contract is signed. Once a crisis occurs, the outcome depends heavily on contract wording, evidence, timely notices and the parties’ conduct. A carefully drafted force majeure and hardship framework can prevent disputes, preserve commercial relationships and protect both parties from unpredictable legal exposure.
Frequently Asked Questions
What is force majeure under Turkish law?
Force majeure generally refers to an extraordinary, unforeseeable and unavoidable event beyond the affected party’s control that prevents or seriously disrupts performance. Turkish law usually analyzes force majeure through impossibility of performance, contractual clauses and general principles of good faith.
What does Article 136 of the Turkish Code of Obligations provide?
Article 136 provides that if performance of an obligation becomes impossible for reasons for which the debtor cannot be held responsible, the obligation terminates.
What is hardship under Turkish law?
Hardship is excessive difficulty of performance. Under Article 138, if extraordinary and unforeseeable post-contract events fundamentally disrupt the contractual balance against the debtor in a way contrary to good faith, the debtor may request adaptation or, if adaptation is not possible, rescission or termination.
Is hardship the same as force majeure?
No. Force majeure usually concerns impossibility or prevention of performance. Hardship concerns excessive burden where performance remains possible but has become unfairly difficult.
Does inflation automatically create hardship in Turkey?
No. Inflation or currency fluctuation does not automatically justify adaptation. The party must satisfy Article 138 conditions and show extraordinary, unforeseeable and severe disruption not attributable to it.
Can parties define force majeure events in the contract?
Yes. Parties should define force majeure events clearly, including war, sanctions, pandemics, natural disasters, government measures, strikes, port closures, customs restrictions and cyberattacks where relevant.
Does CISG apply to international sale contracts involving Turkey?
The CISG may apply to international sale of goods contracts involving Turkish parties unless excluded. Turkey signed the CISG on 7 July 2010, and it entered into force for Turkey on 1 August 2011.
What does CISG Article 79 do?
CISG Article 79 may exempt a party from damages if non-performance was caused by an impediment beyond its control that was unforeseeable and unavoidable. The standard is strict.
What should a force majeure clause include?
It should include covered events, notice deadlines, evidence requirements, mitigation duties, suspension of obligations, effect on payment, extension of time, cost allocation and termination rights after prolonged force majeure.
What should a hardship clause include?
It should include the hardship threshold, covered events, notice procedure, renegotiation period, duty to continue performance, adaptation mechanism, court or arbitration authority and termination rights if adaptation fails.
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