The fundamental question that this chapter aims to answer is whether traditional contract law has been challenged by the rise of smart contracts and, if so, in what manner. This chapter demonstrates that smart contracts are neither smart nor contracts in the legal sense. Smart contracts are rather a form of new technology that is used to secure the execution of promises established through a legal contract that contractual parties are using in line with the principle of freedom of contract. The discussion on smart contracts ask many more questions than it answers. This is still a new form of technology that is increasingly being used by businesses, but it remains to be seen how it fits in traditional contract laws. Smart contracts are not yet sufficiently tested and assessed, especially before the courts, and it is interesting to see what kind of answers case law will provide in the future. When it comes to the enforceability of smart contracts, that does not yet seem to be problematic as they are to be understood in line with the principle of freedom of contract.
There is an increasing commercial imperative to automate various <br/>components of the construction contract administration process, including <br/>technologies such as sensors, common data environments, machine learning <br/>frameworks and smart contracts. These technologies of automation augment <br/>the role of the superintendent that administers construction contracts and <br/>impact how the superintendent exercises discretion in relation to legal <br/>obligations captured in the construction contract. This article analyses the <br/>discretionary aspects of a superintendentâs legal obligations as articulated in <br/>Australian standard form construction contracts. It argues that the exercise of <br/>superintendent discretion in a fair and reasonable manner signals <br/>trustworthiness to the construction industry and positions the superintendent <br/>as a trusted intermediary on the construction contract. Consequently, the <br/>augmentation of the trusted role of a superintendent requires a deeper <br/>understanding of how automation of contract administration processes can <br/>support the signalling of trustworthiness. To do so, this article adopts a <br/>conceptual framework of trustworthiness to examine how the exercise of <br/>superintendent discretion signals trustworthiness in three ways: ability, integrity <br/>and benevolence. The article concludes that care must be taken when <br/>deploying technologies of automation in the contract administration process in <br/>order to ensure that superintendent discretion is exercised fairly, reasonably, <br/>and in good faith
A smart contract is a technology that allows the creation of a negotiation process capable of running independently, without human intervention. This chapter intends to frame the figure of the âsmart contractâ from a legal point of view. It shows that the smart contract is an advanced tool in the context of a contractual relationship. The possibility of making a smart contract âthe contractâ in a legal meaning opens up scenarios which have hitherto been unexplored for contract law. It is still difficult to determine to what extent current rules are adequate to govern this phenomenon. The chapter will therefore conclude with a review of the strengths and weaknesses of the smart contract technology and with some suggestions for a future smart contract law.
Der vorliegende Beitrag untersucht, ob ein NFT (non fungible token) eine Sache iS des § 285 ABGB darstellt und wie dieser sachenrechtlich einzustufen ist. Aufbauend darauf wird seine Ăbertragung, die BegrĂźndung von Dienstbarkeiten, Pfandrechten und Sicherungseigentum sowie sein Gutglaubenserwerb behandelt.
Abstract This chapter explores the English law as an example of a particular model for the analysis of intermediated securities. It analyzes the rights of investors through the lens of trust law rather than through bailment and highlights the advantages and disadvantages of the no-look-through model. It also reviews cases where individuals hold a relatively small number of securities through a financial service provider, including the Duomatic principle that gives license to the court to override the formal requirements for shareholder decisions contained in the Companies Act. The chapter demonstrates why the intermediated holding structure that has evolved across the world does not sit comfortably with English law. It cites the recent scoping study conducted by the UK Law Commission combined with the UK Governmentâs ambition to attract a global pool of investors, which suggests that the UK Government is motivated to address the problem with the English law.
Since Friedrich Kessler wrote âContracts of Adhesion-Some Thoughts About Freedom of Contractâ in 1943, condemning narrow adherence to the principle of âfreedom to contractâ in the face of large scale enterprisesâ 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 Kesslerâs world, where standard-form contracts were a tool for âexcluding or controlling the âirrational factorâ in litigationâ 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 âfreedom to contractâ originally claimed, or does the common law legal systemâs 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 âpotentially illegitimate exercise of powerâ and ânormatively suspectâ 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 systemâs purview. The only thing a smart contract truly adds to traditional contracts is automated execution that is enforced by the blockchainâs 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.
Abstract How should the doctrine of unilateral mistake apply when a programming error results in a buyer's algorithmic trading programme accepting an offer generated by the seller's trading programme to exchange cryptocurrencies at 250 times the current market rate? How should the knowledge element be adapted given that algorithmic trading necessarily means that the tradersâ minds were not engaged at the moment the contract was formed? These novel issues came before the Singapore Court of Appeal in Quoine Pte Ltd v B2C2 Ltd . The decision further cautions customers of cryptocurrency exchanges not to assume that they have property rights in the cryptocurrencies held by the exchange and to examine carefully the nature of asset holding arrangement found in the documentation.
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 Wrightâs Blockchain and the Law: The Rule of Code and Kevin Werbachâs Blockchain and the New Architecture of Trust. While the two books have different focal points, both contain a common Laurence-Lessig-inspired theme of âcode as lawâ in which decentralised blockchain networks are viewed as a regulatory âmodalityâ or âarchitectureâ 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.
One of the major current topics and one of the major innovations in the contract law, as well as in insurance law is the invention of the smart contracts. The author is basing her research on use of smart contract in insurance law and what are the main legal issues arising from the use of smart contract. In her paper, the author points out that the implementation of the smart contract in insurance law will greatly affect all participants in insurance contract and a significant step forward in improving the level of protection of insurance users (consumers), although it takes time and readiness of European and domestic legislators to create a special regulatory framework so that smart contract can reach its potential.
El autor otorga una visiĂłn adecuada de smart contract. No obstante, no se detiene en definir este tipo contractual, pues advierte ciertas caracterĂsticas que deberĂĄn tenerse en cuenta para afinar su funcionalidad, ademĂĄs de identificar las ventajas del arbitraje en la soluciĂłn de controversias que nazcan en la ejecuciĂłn de tales actos jurĂdicos, siempre que se logre un empalme adecuado con este sistema heterocompositivo.
The public debate about smart contracts, meant as self-help remedies grounded on distributed ledger technology, is filled with alarms and high expectations. They have been praised by the tech community as infallible software able to carry out the whole contractual cycle, from formation to enforcement. Conversely, several legal scholars have raised concerns regarding both smart contractsâ inability to reflect relational aspects of contract governance and the augmented complexity generated by the translation of an agreement into computer code. The chapter focuses the discussion on the potential areas which could effectively benefit from implementation of smart contracts. Firstly, it argues that smart contracts might be a viable tool to tackle effectively consumersâ inertia in triggering and enforcing their rights which are standardized and easily verifiable. Secondly, smart contracts have the potential to foster commercial relationships by lowering down transaction costs arising from lack of trust between merchants. Thus, smart contracts are likely to provide better alternatives to traditional tools of business practice, such as letters of credit and escrow agreements.
Chinaâs contract law is examined to determine if there are legal ambiguities with regard to formation, performance, and modification of smart contracts and the problems relating to the enforcement, remedies, and dispute resolution. It is important to Chinese law not to act prematurely to change existing legal frameworks in response to a still evolving technology (blockchain-based smart contracts). On the other hand, the regulatory framework for platform operators needs be adjusted carefully to incentivize them to diligently check and verify the information of vendors who conduct business on the platform.
Larry A. DiMatteo, Michel Cannarsa, Cristina Poncibò
Smart contracts have been a topic of interest to lawyers for some time now. The question regularly arises as to whether a smart contract can also constitute a valid contract on its own. This article examines this question, focusing on the basic principles of Swiss contract law.
EnglishSmart contracts have generated interest around the world and in various sectors of the economy. The vast majority of the legal articles we know about smart contracts are devoted to fundamental aspects of this figure, but above all from a theoretical point of view. The number of articles on the subject from a more practical perspective is still small. What we propose in this article is to point out and problematize some more immediate practical aspects related to the use of smart contracts. portuguesOs smart contracts tem gerado interesse um pouco por todo o mundo e em diversos setores da economia. A grande maioria dos artigos juridicos que conhecemos sobre smart contracts dedica-se a aspetos fundamentais desta figura, mas sobretudo de um ponto de vista teorico. O numero de artigos que se debruca sobre o tema de uma perspetiva mais pratica e ainda reduzido. Aquilo que nos propomos neste artigo e assinalar e problematizar alguns aspetos praticos mais imediatos relacionados com a utilizacao de smart contracts.
Smart contracts are the new norm, yet state legislatures and courts have not developed set rules and answers to legal disputes that these contracts create. Is traditional contract law sufficient? Or should we create an entirely new legislative or common law scheme to deal with these disputes? The common law has proven to be successful in dealing with new technologies and contracts, particularly because of its flexibility. Although a major overhaul may be in the future, there are still solutions that we can find today with the current legal landscape given the state of contract law and its evolution over time. One particularly analogous body of case law is instructive: the law of the vending machine. In the end, thinking about smart contracts as vending machines may be fruitful for the future of this evolving area of the law.