How should force majeure clauses be regulated in yacht contracts?

 How should force majeure clauses be regulated in yacht contracts? A comprehensive legal guide explaining the consequences of force majeure, impossibility of performance, excessive difficulty of performance, notification, extension of time, and termination in yacht sales, charter, construction, and management contracts according to Turkish law.

Entrance

force majeure clauses in yacht contractsmay seem like a short "standard clause" at the end of the contract, they are in reality one of the most critical aspects determining transaction security. This is because a yacht contract is not merely about price, delivery, and usage. In sales, it involves the transfer of ownership; in chartering, the sailing and usage plan; in construction contracts, the shipyard schedule; in management contracts, operational and maintenance obligations; and insurance and port procedures can all be combined in the same file. According to the Turkish Commercial Code, yachts are considered "ships" if their intended purpose requires movement in water and they possess buoyancy; furthermore, seaworthiness and roadworthiness criteria are explicitly regulated in the law. Therefore, events such as bad weather, port restrictions, public authority decisions, war, embargoes, shipyard closures, disruptions in the global supply chain, or extraordinary health measures can transcend being a simple matter of "delay" in yacht contracts and directly affect the performance regime.

The Turkish Code of Obligations does not contain a single, abstract general definition of "force majeure"; instead, the law impossibility of performance, on default , and of excessive difficulty in performance . If performance of the obligation becomes impossible due to reasons for which the debtor is not liable, the obligation is extinguished; however, if performance is not completely impossible but is exacerbated to an extent that is contrary to the principle of good faith due to an extraordinary event, adaptation or rescission/termination may be considered. Therefore, when drafting a force majeure clause in Turkish law, simply stating "if there is force majeure, the parties are not liable" is insufficient; the legal category into which the event impossibility, delay, extension of time, adaptation , or termination —must be considered from the outset.

What does force majeure mean in Turkish law?

In Turkish law, the term force majeure is often used to describe extraordinary events that occur outside the debtor's control, are unforeseen, or whose consequences are unavoidable even if foreseen. However, the contractual effect of this concept should not be interpreted automatically, but rather through the specific provisions of the Turkish Code of Obligations (TBK). According to TBK Article 136, if the performance of the obligation becomes impossible due to reasons for which the debtor is not responsible, the obligation is extinguished. The same article also regulates the debtor's obligation to notify the impossibility without delay and to take necessary measures to prevent further damage. This provision clearly demonstrates why the force majeure clause must include not only a list of events but also the obligations of notification and damage mitigation

However, not every extraordinary event creates complete impossibility. Article 138 of the Turkish Code of Obligations grants the debtor the right to demand adaptation of the contract to the new conditions, or, if this is not possible, the right to terminate the contract, or, as a rule, the right to terminate the contract in the case of contracts with continuous performance obligations, if an extraordinary situation, unforeseen and unforeseeable at the time the contract was concluded, arises due to a reason not attributable to the debtor and alters the existing facts to a degree contrary to the principle of good faith. Therefore, when drafting a force majeure clause, the question of "is performance no longer possible, or is it merely excessively difficult?" cannot be left unanswered. The same event may constitute impossibility in one case and a reason for adaptation in another.

Why should the force majeure clause be written explicitly?

Even if the parties do not include a force majeure clause in the contract, the provisions of Turkish law regarding impossibility and excessive difficulty of performance can be applied. However, in this case, the court must interpret everything according to general provisions at the time of the dispute. A well-written force majeure clause, on the other hand, clarifies from the outset what consequences the event will have, who will inform whom and within what timeframe, which risk will fall on whom, and after what period the right to terminate or withdraw from the contract arises. Default provisions are particularly important in contracts imposing reciprocal obligations; Article 117 of the Turkish Code of Obligations regulates default on due debts, Article 124 regulates situations that do not require a grace period, and Article 125 regulates performance, compensation for delay, waiver of performance, and withdrawal from the contract. If the relationship between force majeure and default is not clearly established in the contract, every delay later turns into a dispute over whether it was a "justifiable delay or default.".

This uncertainty is even more dangerous in yacht contracts. Because in maritime and tourism activities, weather conditions, port authority restrictions, navigation permits, international transportation closures, shipyard supplies, restrictive public decisions, and border crossing procedures play a very concrete role. The Maritime Tourism Regulation governs the procedures for obtaining navigation permits for maritime tourism vessels; it explicitly states that Turkish and foreign-flagged vessels can navigate between Turkish territorial waters and ports with the approval of the port authority, that privately owned foreign-flagged maritime tourism vessels must specify their routes on the navigation permit, and that for certain commercial voyages, it is mandatory to have the navigation permit correctly completed and on board the vessel. Therefore, restrictions originating from public authorities and port/administration demonstrate that the force majeure clause in yacht contracts is not only theoretical but also a directly operational aspect.

What events should be listed under the force majeure clause?

The first mistake when drafting a force majeure clause is writing the events too narrowly; the second is writing them too broadly. Clauses that are too narrow may not cover truly extraordinary events. Clauses that are too broad may allow one party to invoke "force majeure" even for faults within their own control. In accordance with the logic of Articles 136 and 138 of Turkish law, the list of events should be limited to unforeseen or unreasonably preventable events outside the debtor's control that directly affect performance . Examples include war , armed conflict, terrorist acts, embargoes, prohibitive decisions by official authorities, national or international port closures, sailing bans, legal/administrative closures due to widespread epidemics, large-scale natural disasters, fires, earthquakes, hurricanes, storms, and tsunamis – events that effectively halt maritime activity. This list of events should be adapted to the type of contract.

However, considering a heading like "adverse weather conditions" sufficient on its own is not accurate. Because weather risk is inherent in maritime affairs; not every wind, wave, or rainfall can be considered force majeure. The definitions of seaworthiness and voyage in the Turkish Commercial Code also prioritize the vessel's ability to withstand waterborne hazards during the voyage. Therefore, a distinction must be made in the contract between "ordinary meteorological risk" and "extraordinary meteorological events that render navigation practically/legally impossible." Otherwise, one of the parties could use even foreseeable and manageable weather conditions as a means of evading the contract. This conclusion stems from the impact of the seaworthiness/voyage concepts in the Turkish Commercial Code on the interpretation of the contract.

The same force majeure clause should not be used in every type of contract

Yacht sales contracts, charter contracts, construction contracts, and management contracts cannot all use the same force majeure clause. In a sales contract, the main issues are the delivery date, title documents, registration clearance, and actual delivery. In a charter contract, navigation safety, port approval, crew, navigation permits, and weather and public restrictions are paramount. In a construction contract, shipyard closures, disruptions to the main equipment supply chain, classification society test delays, or inability to conduct trial voyages are more significant. In a management contract, marina access, maintenance and repair operations, personnel access, port procedures, and insurance notification processes are key considerations. Since the Turkish Code of Obligations regulates sales, lease, and construction contracts separately, the force majeure clause must also produce different results depending on these contract types.

For example, in a charter contract, the inability to obtain port authority approval or an administrative obstacle in the navigation permit system can directly affect performance. Article 27 of the Maritime Tourism Regulation states that operators of maritime tourism vessels are natural and legal persons licensed by the Ministry; Articles 41-42 regulate the navigation permit and port authority approval regime. Therefore, public authority decisions on the charter side should be addressed in more detail in the force majeure clause. In contrast, in a yacht sales contract, the same administrative restriction may be a reason for delaying the transport of the vessel to the delivery port; however, it is often not as central as the title and closing provisions. A good force majeure clause understands this distinction and is not a copy-paste job.

The notification obligation must be written down

The most important, yet most neglected, element of the force majeure clause the notification obligation. Article 136 of the Turkish Code of Obligations explicitly states that if the debtor does not notify the creditor without delay that performance has become impossible and does not take the necessary measures to prevent further damage, he/she is liable for the resulting damages. This provision implies that the force majeure clause must include a notification period, a form of notification, and a minimum set of information to be provided in the initial notification. Otherwise, one of the parties could develop a defense weeks later claiming that "force majeure actually began on that date." This undermines the principles of good faith and foreseeability.

In good practice, a written notification is required within a specific time or day after the event is learned of. Furthermore, the initial notification should include the nature of the event, its impact on performance, the estimated timeframe, temporary measures taken, and suggestions aimed at mitigating the other party's losses. Subsequently, it is also appropriate to impose an obligation to update the notification at regular intervals. This is because some events are instantaneous and short-lived, while others are continuous and have far-reaching effects. The contract should not simply state "notification will be given"; it should also specify the content of the notification and the ongoing reporting obligations. The logic of mitigating damages in the Turkish Code of Obligations also supports this.

In case of force majeure, will it be an extension, suspension, or termination?

The most critical part of a force majeure clause is specifying what will happen when the event occurs. Not every event immediately terminates the contract. Some events only extend the delivery or performance period; some temporarily suspend performance; and some render the obligation entirely impossible. Articles 124 and 125 of the Turkish Code of Obligations stipulate that in cases where the failure to perform within a specified time becomes useless for the creditor, granting an extension of time may not be necessary, and alternative rights may arise. Therefore, instead of always stating "no liability" as an automatic consequence of the event, the force majeure clause should establish a phased structure, first extending the time, and then, if a certain threshold is exceeded, termination/rescission.

This is particularly important in yacht charter contracts. A short-lived storm lasting one day may not automatically terminate the charter; however, a port closure that renders the first four days of a week-long charter legally and practically meaningless can make performance impossible. Similarly, in a construction contract, a supply chain disruption may reasonably extend the delivery date; but months of international embargo or the inability to import critical equipment can fundamentally disrupt the project. Therefore, the correct clause threshold periods : for example, 7 days, 15 days, 30 days, or other periods determined according to the economic purpose of the contract, granting the parties the right to withdraw/terminate or renegotiate. This is the most sound method, compatible with the Turkish Code of Obligations' default and excessive difficulty of performance regime.

Force majeure and extreme difficulty in performance should not be confused with each other

A common mistake in practice is labeling every extraordinary event as "force majeure" and assuming that the obligation is completely extinguished. However, Article 138 of the Turkish Code of Obligations indicates that in many cases, the more accurate category extreme difficulty of performance . For example, the port of delivery may have changed due to war, international freight costs may have increased exorbitantly, there may be severe restrictions on the use of the vessel on a particular route, or the cost of main equipment may have risen extraordinarily. In this case, the obligation does not always become completely impossible; however, performance under the same conditions may become excessively difficult to the point of being contrary to the principle of good faith. In these scenarios, the force majeure clause should establish an adaptation mechanism instead of an "all or nothing" approach.

Therefore, a good yacht contract can include a clause stating that "the parties will first negotiate an adaptation within a reasonable time," either alongside or within the force majeure clause. For example, solutions such as changing the port of delivery, rescheduling the voyage to a different date range, postponing the usage period, partially revising the price, offering an alternative marina or shipyard option, or changing auxiliary equipment can be foreseen. In this way, instead of immediately resorting to termination or withdrawal, the parties seek a truly commercially sustainable interim solution. This is extremely functional in terms of incorporating Article 138 of the Turkish Code of Obligations into the contract.

Points to consider separately for sales, charter, construction, and management contracts

When writing a force majeure clause in a yacht sales contract, the submission of title documents on the closing date, the mortgage cancellation process, the actual delivery of the vessel, and any flag/registration changes should be considered together. If performance becomes completely impossible, the termination of the obligation and the return of previously received obligations come into play under Article 136 of the Turkish Code of Obligations; however, if only the delivery date is delayed, the default and extension of time mechanism comes into play. Therefore, force majeure in the sales contract should primarily delivery, closing , and risk transfer .

In yacht charter contracts, the backbone of the force majeure clause is navigation safety, port approval, navigation permit, weather, and public restrictions. The navigation permit and port authority approval system in Articles 41-42 of the Maritime Tourism Regulation clearly demonstrates that administrative intervention in a charter can directly affect performance. Therefore, the charter clause should specify particular consequences such as route changes, waiting, delayed departure, partial performance, refunds/discounts, and reservation transfers. Not every public decision terminates the contract; however, it is also incorrect to view every decision as a "normal delay.".

A force majeure clause in a yacht construction contract requires specific details regarding events such as shipyard closures, delays in critical equipment procurement, obstacles to testing/trial voyages, and impacts on classification/provisional acceptance processes. Article 473 of the Turkish Code of Obligations grants the employer strong rights if the contractor fails to commence work on time or delays the work in violation of the contract; therefore, the shipyard cannot simply dismiss its contractual liability by classifying every delay as force majeure. A good clause should clearly define which events will truly be considered "excusable delays" to be added to the schedule, which will not, and should not confuse change orders with force majeure.

In yacht management contracts, the force majeure clause should address issues such as marina access, maintenance team operations, personnel transportation, official documents, and insurance notifications. In these contracts, which are based on agency and service principles, it is unacceptable for the management company to invoke force majeure for every disruption; because their own organizational shortcomings must be distinguished from extraordinary external events. Failure to make this distinction in the contract inevitably leads to disputes.

If there is a consumer aspect, it should be written more carefully

Some yacht charter or service agreements may qualify as consumer transactions depending on the specifics of the case. Law No. 6502 stipulates that it covers all types of consumer transactions and defines a consumer as a natural or legal person acting for non-commercial or non-professional purposes. Therefore, in some contracts between a professional provider and a party acting for private use, unilateral and excessively broad force majeure clauses may become particularly controversial. If the force majeure clause is structured as a "freedom from liability" clause giving the provider unlimited room for maneuver, serious validity and interpretation problems may arise, especially in cases involving consumers.

Therefore, a safe approach is to establish the force majeure clause on the basis of honesty, balance, and predictability. Organizational or personnel shortages within the control of one party, simple supply defects, lack of routine maintenance, or preventable administrative errors should not be written as force majeure. A good clause covers genuinely external and extraordinary events; not the negligence of one party. This conclusion is consistent with both the fault-based compensation logic in Article 112 of the Turkish Code of Obligations and the aim of Law No. 6502 to protect the economic interests of consumers.

Conclusion

how force majeure clauses should be regulated in yacht contracts lies not in a single ready-made sentence, but in the accurate reflection of the impossibility, default, and excessive difficulty of performance regimes in Turkish law within the contract. Article 136 of the Turkish Code of Obligations regulates impossibility of performance due to reasons for which the debtor cannot be held liable; Articles 117, 124, and 125 regulate default and optional rights; and Article 138 regulates excessive difficulty of performance. The provisions of the Turkish Commercial Code regarding ships and seaworthiness, and the navigation permit and port approval regime of the Maritime Tourism Regulation, also constitute the real-world equivalent of the force majeure clause, especially in yacht charter and operation contracts.

Therefore, a good force majeure clause should include at least the following elements: a clear but measured list of events, a distinction between ordinary risks and extraordinary events, an obligation to provide immediate notification, an obligation to mitigate damages, an extension and suspension mechanism, negotiation for adaptation, a right to withdraw/terminate after a certain threshold period, a refund or offsetting regime, and the condition that the event was truly beyond the control of the party. Instead of proceeding with ready-made and copied clauses, if a force majeure clause is established that is separately adapted to the nature of the sale, charter, construction, or management contract, the parties will suffer less damage in unforeseen crises and will be less drawn into subsequent disputes over whether or not the event was force majeure. In a yacht contract, true security lies not in writing a force majeure clause, but in writing it with the correct consequences.