Un smart contract celebrado con un consumidor, debe configurarse sobre relaciones jurídicas sencillas y fácilmente interpretables para facilitar el deber de información.La Resolución 139/2020 reafirma conceptos del estatuto protectorio del consumidor. Por lo cual el proveedor de un smart contract tiene un deber reforzado de colaboración en todos los procedimientos administrativos en los que esté involucrado un consumidor hipervulnerable.
Since Friedrich Kessler wrote “Contracts of Adhesion-Some Thoughts About Freedom of Contract” in 1943, condemning narrow adherence to the principle of “freedom to contract” in the face of large scale enterprises’ growing preference for standard form contracts, Courts have balanced their desire to uphold contracts while protecting weaker parties from adhesion. Today, they face similar challenges with the rise of code-driven smart contracts and blockchain governance. Similar to Kessler’s world, where standard-form contracts were a tool for “excluding or controlling the ‘irrational factor’ in litigation” such as uncertain outcomes of judicial interpretation, automated smart contracts aim to put themselves outside the control of both contractual parties and the courts, thus removing any ability to breach or tamper with the original terms. Smart contract advocates contend that removing the judiciary as the governing body over contract law and imposing contractual performance via decentralized blockchain governance improves efficiency and certainty.
But, how much can one really write a contract that completely circumvents the potential for legal intervention or judicial enforcement? Will smart contracts finally achieve the complete separation between private and public law that advocates of “freedom to contract” originally claimed, or does the common law legal system’s deep-rooted belief in the rule of law and due process prevent the judiciary from being excluded from contract enforcement regardless the medium? And is there a risk that, as smart contract sceptics posit, smart contract platforms and blockchain governance create a new feudal order with a “potentially illegitimate exercise of power” and “normatively suspect” wealth distributions?
The short answer, as this paper will demonstrate, is that as long as smart contracts meet the traditional requirements of a contract, they cannot fall outside the establish legal system’s purview. The only thing a smart contract truly adds to traditional contracts is automated execution that is enforced by the blockchain’s consensus mechanism; this may provide some efficiency to the legal system by streamlining basic performance but it cannot be the only form of governance over smart contracts. While there may be procedural challenges to undoing or enforcing specific performance under smart contracts because of their decentralized features, any substantive problems that could occur within a smart contract are imminently addressable with and must be subjected to the principles and remedies found in traditional contract law. Finally, I will conclude with current developments in smart contracts which point to a potential for them to become an integral part of our legal system going forward. Overall, I will argue that smart contracts, if carefully drafted to consider potential pitfalls and the future needs of contracting parties to amend or enforce, can hold the potential to provide efficiencies and greater legal certainty to contracting parties. This is achieved, not through circumventing the legal system, but by working with it to automate simple performance enforcement and deferring more complex contractual breakdowns to the judiciary.
Since Friedrich Kessler wrote “Contracts of Adhesion-Some Thoughts About Freedom of Contract” in 1943, condemning narrow adherence to the principle of “freedom to contract” in the face of large scale enterprises’ growing preference for standard form contracts, Courts have balanced their desire to uphold contracts while protecting weaker parties from adhesion. Today, they face similar challenges with the rise of code-driven smart contracts and blockchain governance. Similar to Kessler’s world, where standard-form contracts were a tool for “excluding or controlling the ‘irrational factor’ in litigation” such as uncertain outcomes of judicial interpretation, automated smart contracts aim to put themselves outside the control of both contractual parties and the courts, thus removing any ability to breach or tamper with the original terms. Smart contract advocates contend that removing the judiciary as the governing body over contract law and imposing contractual performance via decentralized blockchain governance improves efficiency and certainty. But, how much can one really write a contract that completely circumvents the potential for legal intervention or judicial enforcement? Will smart contracts finally achieve the complete separation between private and public law that advocates of “freedom to contract” originally claimed, or does the common law legal system’s deep-rooted belief in the rule of law and due process prevent the judiciary from being excluded from contract enforcement regardless the medium? And is there a risk that, as smart contract sceptics posit, smart contract platforms and blockchain governance create a new feudal order with a “potentially illegitimate exercise of power” and “normatively suspect” wealth distributions? The short answer, as this paper will demonstrate, is that as long as smart contracts meet the traditional requirements of a contract, they cannot fall outside the establish legal system’s purview. The only thing a smart contract truly adds to traditional contracts is automated execution that is enforced by the blockchain’s consensus mechanism; this may provide some efficiency to the legal system by streamlining basic performance but it cannot be the only form of governance over smart contracts. While there may be procedural challenges to undoing or enforcing specific performance under smart contracts because of their decentralized features, any substantive problems that could occur within a smart contract are imminently addressable with and must be subjected to the principles and remedies found in traditional contract law. Finally, I will conclude with current developments in smart contracts which point to a potential for them to become an integral part of our legal system going forward. Overall, I will argue that smart contracts, if carefully drafted to consider potential pitfalls and the future needs of contracting parties to amend or enforce, can hold the potential to provide efficiencies and greater legal certainty to contracting parties. This is achieved, not through circumventing the legal system, but by working with it to automate simple performance enforcement and deferring more complex contractual breakdowns to the judiciary.
El presente trabajo ofrece soluciones a los problemas jurdicos que plantean los smart contracts, por tratarse de clusulas contractuales autoimplementadas en un cdigo informtico que autoejecuta su contenido. Estos versan sobre su discutida naturaleza jurdica, la adhesin del consumidor 2.
In this work author compares smart-contract to letter of credit. Discovering technological and law aspects of smart-contract. The author underlines indivisibility of these aspects, which consolidate in unique symbiosis of digital solutions and law constructions. Moreover, technical and law nature are to be discovered in this paper, particularly, program and law mechanism of smart-contract. Comparing smart-contract to letter of credit, author concludes that smart-contract is one of types of letter of credit as a payment instrument.
The article concerns selected issues regarding smart contracts from the perspective of private law, in particular the concept of a contract, determination of its content, principles of performance and breach of an obligation. The legal analysis jest supplemented with technological aspects that show the essence and mechanism of operation of Blockchain, smart contracts, Ethereum. The legal doctrine generally referred to the technological aspects of smart contracts, attempting to include them in the traditional contract law system. The article contends that this is the wrong approach. The authors argue that a smart contract as such is not a contract, but a computer program (code) that can be a manner of concluding a contract and at the same time self-executing it. The qualification of a smart contract as a method of conclusion a contract, and not the contract itself, determines the conclusions on other aspects of concluding the contract, its interpretation, etc. Considerations concerning the model of a self-executing contract are formulated around this thesis. This model determines the proposals for regulation of the principles of performance of the contract, the consequences of the breach of contract and others areas of concern.
Smart contracts and the blockchain have generated considerable excitement and concern (in equal measure) throughout the commercial world. These technologies promise to revolutionise commercial transactions by making them faster, cheaper, more transparent and more secure. Opponents, however, have warned of the issues that arise through the use of these technologies. One major concern is that smart contracts will not be compatible with existing laws. Some commentators have suggested that these contracts lack consideration and are prima facie unenforceable. This paper bluntly dismisses this suggestion. Such a ‘myth’ has been constructed upon misconceptions of the nature of smart contracts and the legal obligations they contain and enforce. It will be argued that smart contracts do not, as a class, lack consideration.
Amy J. Schmitz describes the development of contracts and the challenges in resolving disputes in this arena. She explains the need for sound dispute system design complete with an arbitration provision built into smart contracts. She is the Elwood L. Thomas Missouri Endowed Professor at the University of Missouri School of Law.
The growing use of smart contracts in a wide range of transactions has raised a deluge of legal issues, including allocation of liability in such transactions. In many circumstances, using smart contracts involves a range of legal risks that might be distributed beyond the contractual parties to other parties, such as the developers of the smart contract code. While smart contracts have the potential to disrupt the current legal and transactional status quo, notorious occurrences such as attacks on Ethereum or Bitcoin platforms highlight the need to properly dissect the issue of liability and rightly apportion liability where it falls. This also includes working on any lapses in the existing legal and transactional framework to cater for these issues. This article sets out to examine the validity of smart contracts in the light of existing contract law principles. It examined the legal regime and development of smart contracts in Nigeria. It further discussed the problem of allocation of liability associated with smart contracts. It made certain propositions on how these issues could be tackled including the amendment of existing legal framework to aptly provide for and regulate the smart contracts era particularly in Nigeria. The doctrinal method of research was employed to dissect the issues raised and discussed in the article. Relevant texts were scrutinized and analyzed to arrive at the findings and recommendations contained in the article.
For some time now, blockchain technology has been used for many purposes all over the world. The question arises – how do we regulate proving facts in a dispute between agreement parties when they use self-executing contracts? The answer to this question is explored in this research in the context of civil issues. Furthermore, the Polish law has introduced a new tool in the form of a ‘contract of evidence’ (similar to the parol evidence rule) which may increase the popularity of smart contracts. The research methodology is based on the analysis of the two existing regulations from the Civil Procedure Code and the Commercial Code. Moreover, legal scientific studies that indicate the risks associated with using self-executing contracts in such a way will be analysed. All efforts have been taken to obtain conclusions regarding the future of this type of solution in Poland and Polish smart cities.
The paper bill of lading remains pervasive despite numerous problems associated with its form. Blockchain heralds change as it allows unique tokens to be possessed and traded peer-to-peer instantaneously over the internet without the need for a trusted central administrator. Blockchain furthermore promises to ease processes thanks to its applicability in smart contracting procedures. The Model Law on Electronic Transferable Records (MLETR), passed by UNCITRAL in 2017, provides the relevant legal framework for legal protection of the blockchain bill of lading. This paper proposes Ethereum as a viable smart contract-enabled blockchain platform for a bill of lading system and examines said system’s compatibility with the MLETR. The analysis also shows that blockchain technology may have significant consequences for the ‘control’ approach for establishing possession of an electronic transferable record.
While technology is playing an increasingly important role in courtrooms around the world, Chinese courts are adopting and experimenting with deep technologies at a much faster pace and on a greater scale than their counterparts in most other countries. In recent years, Chinese courts have seen major developments in online dispute resolution platforms, specialized Internet courts, and the wide use of AI tools across case management, dispute resolution and adjudication processes in personal injury claims. Other novel technologies such as distributed ledgers, blockchain and smart contracts solutions are currently being developed and rolled out in several local and specialised courts. The Chinese leadership has established a policy framework of “Smart Courts” with the aims of enhancing judicial efficiency, transparency, and effectiveness. This article provides an overview of how Chinese courts have swiftly embraced the adoption of new technologies under this framework over the past few years, with consideration of how Smart Courts may handle personal injury claims.
ابزارهای مبادلاتی نوین در عصر حاضر نقشی غیرقابل انکار در توسعه تجارت الکترونیکی بر عهده دارند. یکی از این ابزارها قراردادهای هوشمند هستند که در مقایسه با دیگر انواع قراردادهای الکترونیکی دارای خصوصیاتی از جمله سرعت و امنیت بالا هزینه کم در تشکیل قرارداد میباشند. پژوهش حاضر به روش اسنادی به دنبال پاسخگویی به این سؤال است که سیاستگذاری قواعد عمومی تشکیل قراردادها در مرحله انعقاد قراردادهای هوشمند با چه چالشهایی مواجه است؟ بهطور کلی مهمترین چالشهای موجود مطابقت قواعد حاکم بر این قراردادها با هنجارهای موجود در جامعه، تعارض قوانین داخلی کشورها با یکدیگر و مقررات بینالمللی، اعتبارسنجی این قراردادها و ابزارهای انعقاد آنها از جمله ارزهای مجازی، سازوکار عملکرد هوش مصنوعی و ماهیت متمرکز پایگاههای اطلاعاتی و هوش مصنوعی میباشد. رفع چالشهای مذکور نیازمند برخی سیاستگذاریهای تقنینی و اجرایی از جمله تصویب قوانین کارآمد در جهت اعتبارسنجی قراردادهای هوشمند و ارزهای مجازی، اصلاح قوانین متعارض موجود، پیشبینی تشریفات تخصیص مجوز تملک ارزهای مجازی و بهرهمندی از امضائات دیجیتالی، آگاهی بخشی به مردم و تعیین نهادهای ناظر خواهد بود.
Abstract There has been burgeoning interest among legal scholars in recent years regarding the implications of blockchain technology for the law. Two thoughtful monographs that go beyond the hyped claims of enthusiasts and cynics are Primavera De Filippi and Aaron Wright’s Blockchain and the Law: The Rule of Code and Kevin Werbach’s Blockchain and the New Architecture of Trust. While the two books have different focal points, both contain a common Laurence-Lessig-inspired theme of ‘code as law’ in which decentralised blockchain networks are viewed as a regulatory ‘modality’ or ‘architecture’ with its own system of rules. However, as this article argues, blockchain is not outside the law or the existing legal system. Code necessarily interacts with other modes of regulation, namely the market, social norms and law, in constraining the operation of blockchain applications such as smart contracts. This argument also situates smart contracts in a relational analysis of real-world contracting practices.
The principles of contract law have shown continued resilience in light of constant technological developments, including the mainstream adoption of the Internet. The ability to absorb technological change may be attributable to the broad manner of their formulation. For example, the foundational proposition that ‘legal intention can be expressed in any manner’ has enabled the nearly seamless acceptance of online contracting. If intention can be manifested by a nod or a handshake, it can also take the form of a click or a swipe. Similarly, the requirement of consideration can be met not only by peppercorns or money, but also by one’s permission to share personal information in return for the provision of online content and services. While the Internet hardly creates academic excitement anymore, a number of internet- related technologies may pose a challenge to the principles of contract law and may, finally, test their flexibility. Purportedly, blockchain-based smart contracts, which are often defined as the encoding of legal terms in self-executing computer code, enable not only the automation of performance but also the delegation of enforcement to immutable code. The theory is that if both performance and enforcement are entrusted to impartial machines, breach becomes impossible. Smart contracts are also premised on the ability to translate contractual obligations into algorithms – a process aimed at the elimination of ambiguity and enhancement of legal certainty. Abstracting from technological minutiae, we must inquire whether, or to what extent, such ‘operations’ are desirable or legally permissible. The challenges of automation are further aggravated by advancements in artificial intelligence. The accompanying problems exceed those inherent in the possibility of inadvertent orders, unforeseen transactions or computer errors. We are forced to inquire whether such technological phenomena as algorithmic trading, machine learning or autonomous agents affect the existence of intention and, on a broader level, raise problems concerning the validity and enforceability of any resulting contract – if only due to the unprecedented transactional imbalances introduced by them. An additional set of difficulties concerns ubiquitous computing, loosely defined as the user-facing technologies involving the Internet-of-Things (‘IoT’). Smart objects and self-checkout terminals blur the division between online and offline environments and force a revision of our understanding of ‘online contracting.’ When the Internet spills over our computer screens and when we encounter requests for consent and contractual terms in contexts that have traditionally been non-commercial, it becomes difficult to rely on such basic principles as the objective theory of contract or on the presumption that in commercial contexts the parties intend to be legally bound. The point is not to question the continued applicability of such principles or presumptions but to illustrate the difficulty in their application. In sum, my chapter explores the legal implications of the said technologies and, while abstaining from unnecessary futurism, presents a realistic picture of their legal relevance. Particular attention is devoted to the overreaching question whether the principles of contract law, in their traditional formulation, are capable of accommodating (or withstanding ?) technological change. While it is difficult to predict technological trajectories and future legal developments, it is possible to extrapolate from existing trends and anticipate certain theoretical bottlenecks created by technological change.
Having recently celebrated its ten-year anniversary, Bitcoin should be considered a qualified success. In October 2020, each unit1 was worth about $10,700, and the entire market capitalization was approximately $200 billion.2 Bitcoin is a significant economic force with sizable market value. Despite this success, however, Bitcoin has not been widely adopted as a method of payment, which was its intended use.3 By providing a template for a durable cryptocurrency, Bitcoin also blazed a path for other cryptocurrency projects. In terms of market capitalization and current importance, Ethereum is comfortably in second place.4 In October 2020, it had a market capitalization of approximately $40 billion.5 Unlike Bitcoin, however, Ethereum was not designed primarily to serve as a method of payment. Ethereum supports a system of sophisticated “smart contracts” that would not work on the Bitcoin system. Smart contracts and cryptocurrencies have sparked considerable interest among legal scholars in recent years, and a growing body of scholarship focuses on whether smart contracts and cryptocurrencies can sidestep law and regulation altogether.6 Bitcoin is famously decentralized, without any central actor controlling the system. Its users remain largely anonymous, using alphanumeric addresses instead of legal names. Ethereum shares these traits and also supports smart contracts that can automate the transfer of the Ethereum cryptocurrency (known as ether). Ethereum also supports specialized “tokens” that can be tied to the ownership of assets, goods, and services that exist completely outside of the Ethereum blockchain. The goal of this Article is to evaluate the degree to which cryptocurrencies and smart contracts can operate outside the reach of law and regulation. By some accounts, cryptocurrencies and smart contracts will revolutionize private law.7 Some argue they have the potential to displace contract and property law. For example, in a previous article, I argued that Bitcoin represents a system of private property that exists wholly outside of traditional legal structures.8 In this Article, I will argue that a complete revolution is not inexorable.9 Facing the technical and complicated nature of this subject, we should keep in mind a simple fact: cryptocurrencies and smart contracts are computer data and computer programs. To a large extent, they will have legal force only if given force by judges, regulators, and legislators. Part II describes Bitcoin and how it creates a system of property that exists outside of legal structures. Bitcoin is special because it controls no external assets (like securities, dollars, or gold). It is purely “notional” property that exists only on a computer file. Part III describes Ethereum and how it builds upon the principles of Bitcoin. The primary innovation of Ethereum is smart contracts, which allow for variable and conditional transfers of cryptocurrency. To be of commercial value, however, smart contracts must incorporate economic or financial information (e.g., interest rates or exchange rates). Ethereum allows users to incorporate this information using third party “oracles.” While oracles allow for sophisticated transactions, their presence illustrates some of the limits of smart contracts. Part IV extends the discussion of Ethereum and explains how many developers use it as a way to effectuate property transactions. Tokens are specialized smart contracts used to represent ownership of assets or certain privileges. Conceivably, ownership in any asset— homes, cars, etc.—could be represented by Ethereum tokens. Rather than using a deed of transfer, owners could simply transfer the representative tokens. Part V develops what this Article calls a “remote-computer model” of Bitcoin and Ethereum. Because Bitcoin and Ethereum are computer programs and computer data, we can view each as constituting a single computer. This hypothetical computer is remote in the sense that judges, regulators, and legislators can exercise little control over it directly. The remote computer controls ownership of cryptocurrency units, leaving direct cryptocurrency transactions outside the scope of traditional legal institutions. That being said, smart contracts often purport to control external resources and rights. For example, a smart contract might purport to control the transfer of land or stock in a corporation. These transactions have effects outside the hypothetical remote computer and can potentially be subject to control by legal institutions.
Automation is taking hold in different aspects of business across every industry and every sector. Consistent with this trend, the notion of embedding automation into legally binding contracts is also gaining momentum. COVID-19 is fuelling digital transformation and has highlighted frustrations with static contracts that sit disconnected from digital processes and systems. As automated ‘smart contracts’ become more common, lawyers have been grappling with how to preserve the legal integrity of the contract whilst harnessing the benefits of automation and digital connectivity. Automation of contract performance is a field lacking in standard definitions. This paper proposes a framework to assist discussion and development of legally enforceable automation of contract performance and explores high level features of contracts along the spectrum of contract automation by proposing an initial model for the levels of automation (and digitalisation). This model draws analogies with the SAE International J3016 “Levels of Automation” widely adopted for autonomous vehicles.