57 COMMERCIAL LAW carried out was unexpected, may both be considered within the scope of the term unforeseen circumstance.1 What is unforeseeable for an unforeseen circumstance is not the possibility of their occurrence, but it is the probability of its occurrence, and the effects of unforeseen circumstance on performance, and who bears the risk in case of its occurrence, and its consequences.2 Thus, it is crucial to carry out any necessary research in the most detailed manner possible, especially by the contractor prior to the execution of the contract and, in some cases, before the bidding for the tender. This research is called “due diligence” in the language of international contracts. The essential aim of due diligence is to determine risk factors and the way to draft allocation of risk in the contract, and the effects of the occurrence of risk factors during performance of the operations, and to determine the consequences and effects of its occurrence. The most important work to be done to determine those is inspection of the geographical conditions and ground conditions of the site where the operations that are set forth in the contract will be carried out, the determination of the accuracy and fit for purpose of data provided by employer, both among the tender documents, and at the contract stage, and to ascertain who will bear the liability and obligations of the project drawing and design. In spite of all the work carried out, the occurrence of unforeseeable and/or unforeseen circumstances when the contract was drafted and executed during the performance of the work is possible, and a frequently encountered situation. Many legal institutions have emerged, especially the adaptation of contract, in order to provide contractual justice in unforeseen circumstances.3 1 Schneider, Micheal E.: “A Typology of Risk Allocation – The Example of FIDIC Suite of Contracts”, in Atamer, Yeşim M. / Süzer Baş, Ece / Geisinger, Elliott: Uluslararası İnşaat Sözleşmelerinde Beklenmeyen Hal Kavramı, On İki Levha Yayıncılık, p. 17. 2 Koot van de Wim: “The Owner’s and Contractor’s Due Diligence in Theory and Practices”, in Atamer / Süzer Baş / Geisinger, p. 51. 3 Baysal, Başak: “A Comparative Analysis Regarding Continental European Legal Systems”, in Atamer / Süzer Baş / Geisinger, p. 91.
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