Impossibility of performance due to reasons attributable to the obligee

A contract is one of the sources from which an obligation originates in the mechanism of our Turkish Code of Obligations no. 6098. When a contract is concluded, and incidentally, an obligation relation is established, three fundamental elements arise, namely the obligee, obligor, and the obligation itself. Obligee and obligor, who are parties to the contract, make certain contemplations and covenants at the time of conclusion of the contract and set out a plan for the process of performance of the obligation in question. Usually there is no problem when that obligation is performed immediately upon the conclusion of the contract. However, in the case that there is a period of time between the conclusion of the contract and its performance, certain changes may occur in the circumstances and what the parties have contemplated may not materialize. In such a case, a risk that is called "contract risk" is deemed to have occurred. The reason for the failure or inability to perform the obligation as planned may be attributable to either of the contractual parties or non-contractual factors. In any event, if the obligation may not be performed definitively and continuously, this gives rise to a case of impossibility. General provisions of our Turkish Code of Obligations no. 6098 address the case of impossibility albeit to a limited extent. Article 27 of our Code prescribes that a contract is null and void if its subject matter is impossible to perform, while Article 136 thereof stipulates that if it becomes impossible to perform the obligation for reasons not attributable to the obligor, the obligation shall become extinguished, and Article 137 thereof states the provisions applicable to partial impossibility of performance. In addition, there are also rules set out in the special provisions that are applicable to cases of impossibility. The concept of impossibility has been essentially addressed from the perspective of the obligor in the Turkish Code of Obligations. As a matter of fact, the main party who is fundamentally responsible for the obligation is the obligor. Nevertheless, it is also possible that an obligor's obligation may become impossible to be performed for reasons attributable to the obligee. This situation, however, has not been addressed by the Turkish Code of Obligations. Our study focuses on the impossibility of performance due to reasons attributable to the obligee. As it is widely accepted currently in the doctrine, there is a legal gap as there is no general provision applicable to the impossibility of performance for reasons attributable to the obligee. Our study will discuss the barriers before performance for reasons attributable to the obligee and the obligor as well as the concept of impossibility, and will endeavour to address how the existing legal gap may be eliminated in the case of impossibility of performance due to the obligee, which provisions may be applied by analogy, potential rights of the obligor that may arise from this performance impossibility, and the fate of the counter obligation.