Contract Law and NFT Marketplaces

Abstract

This chapter investigates the complex contractual dynamics that underpin the transfer of non-fungible tokens (NFTs) within online marketplaces. Particularly, it offers a critical assessment of the impact that platform terms of service (ToS) have on shaping rights and obligations in NFT transactions. Case studies from prominent NFT online marketplaces illustrate that, while these marketplaces claim to act as third-party intermediaries, their ToS significantly dictate the enforceability of IP rights, the extent of user protections, and the procedural rules surrounding NFT transactions. The chapter then examines the relevance and application of the EU Digital Services Act (DSA) to NFT marketplaces, pressing NFT marketplaces to reassess and align their ToS towards the goals of transparency and fairness. Ultimately, the discussion aims to provide insights into the intersection of contract law, NFTs, and the EU DSA, offering an initial understanding of the enforcement challenges and opportunities presented by the EU’s platform governance approach in the evolving NFT marketplace ecosystem.