Band 14, Heft 4

This article explores ‘smart contracts’ from first principles: What they are, whether they are properly called ‘contracts’, and what issues they raise for national contract law. A ‘smart’ contract purports to record contractual promises in language which is both intelligible to human beings and (ultimately) executable by machines. The formalisation of contracting language that this entails is, I argue, the most important aspect for lawyers—just as important as the automation of contractual performance. Rather than taking a doctrinal approach focused on the presence of traditional indicia of contract formation, I examine the nature of contracts as legal entities created by words and documents. In most cases, smart contracts will be ‘wrapped in paper’ and nested in a national legal system. Borrowing from the idiom of computer science, I introduce the term ‘contract stack’ to highlight the complex nature of contracts as legal entities incorporating different ‘layers’, including speech acts by the parties in both natural and formal languages as well as mandatory legal rules. It is the interactions within this contract stack that will be most important to the development of contract law doctrines appropriate to smart contracts. To illustrate my points, I explore a few issues that smart contracts might raise for English contract law. I touch on the questions of illegality, jurisdiction, and evidence, but my focus in this paper is on exploring issues in contract law proper. This contribution should be helpful not only to lawyers attempting to understand smart contracts, but to those involved in coding smart contracts—and writing the languages used to code them.

The problem of excuse for non-performance of contracts caused by changed circumstances is, despite its long history in contract law scholarship, far from being resolved. This paper is based on the dialogue between two colleagues from different academic backgrounds and comparatively investigates German, French, Italian and English approaches and current developments in the field. First, the paper questions whether the doctrine of changed circumstances (or imprévision) remains a mere exception, or whether it is possible to argue that, by considering the latest developments, it may represent a model in European contract law. This issue has recently attracted the attention of the French legislature in its modernization of the Code Civil. Second, by examining the many different national doctrines, the paper aims to reconstruct and clarify, through comparative analysis performed, the conceptual framework of such a theory by discussing, in particular, issues of contract interpretation, presupposition, causation, good faith, fairness and solidarity.

The so-called ‘free’ digital business models – users are not requested to pay a price, but to disclose personal data – are a very common reality. To tackle this phenomenon, the European Commission’s proposal of Directive on contracts for the supply of digital content used the concept of personal data as counter-performance. This stance proved to be quite problematic. It has been opposed by the European Data Protection Supervisor (EDPS) arguing that it should not be possible to subject the fundamental right to data protection to a commercial transaction. This article dwells upon the economic exploitability of the right to data protection, showing that Article 8 of the EU Charter of fundamental rights and the related case law of the CJEU do not justify the concerns raised by the EDPS. This seems to be confirmed by the fact that the legal traditions of the EU Member States recognize that personality rights can be the object of a contract, although they limit to a certain extent the private autonomy of the parties. Thus, the commodification of personal data – like the commodification of other incorporeal attributes of personality – is not banned. Rather, there is now a policy issue about how to handle the risk of personalized discrimination and the problem of inequality of bargaining power in digital business models based on personal data. In this respect, political decisions should not be too affected by conceptual barriers between data protection law and contract law. In line with this position, the author argues that the economic exploitation of the right to data protection should not be considered a waiver of the same right.