The author examines the impact of blockchain and smart contracts on the legal profession. After all, the lawyer is entitled to draft smart contracts. For a few years now, in information technology, the lawyer has promoted the writing of so-called agile contracts in connection with projects run by “agileȁ methods. However, the smart contract, whether described as a contract or simple algorithm, challenges the lawyer by its philosophy (“code is law”) and by its writers who are no longer jurists but developers. He discusses whether this technology will be “killing off” the legal profession. Before over-hastily assuming this apocalyptic demise of the lawyer, the author suggests to think about the role and the status of the lawyer in his general mission of advice and defense, and considers whether information technology can be a substitute for the lawyer or simply a new tool that could be used.

This chapter acts as an introduction to the book by discussing the intersection of law and technology. The topics examined include formalism versus contextualism, form versus context, enforceability, and regulation.

Data are an essential part of a person’s patrimony called “digital assets.” Data are traded, can be seized, and can also be inherited. This hybrid world raises very fundamental questions from a traditional private law viewpoint. The following brief examination will show what these questions are, focusing on – what is traditionally called “property law” – arguing that we need to develop a legal system parallel to traditional property law, which you might call “data property law.”

This chapter discusses the approaches toward regulation and liability of digital platforms, focusing on the EU perspective. It demonstrates that the current regulatory and scholarly perception of platform liability in the European Union has been framed by the EU Electronic Commerce Directive 2000/31 provisions on liability of information society service providers. Subsequently, in light of scholarly writings and regulatory developments, two main approaches toward platform liability are identified and discussed: on the one hand, the idea of general provisions on platform liability, exemplified by the Discussion Draft on Digital Platforms; on the other hand, sector-specific provisions that densely regulate business models based on digital platforms, exemplified by the new EU Package Travel Directive 2015/2302. Both approaches are evaluated as far as their potential for inspiring legislative activity is concerned.

Chapter 2 investigates the legal dimensions of smart contracts. It analyzes the current legal framework, describes some relevant practical issues, identifies the main legal questions raised by the subject, and offers some conclusive remarks. In particular, Chapter 2 aims at exploring whether this potentially breakthrough technology (i.e., the blockchain) implies a legal revolution: Do smart contracts require new legal avenues to be developed, or is it instead appropriate to adapt the existing legal categories to the new reality? In either case, how are and should they be regulated?

The chapter focuses on an important part of contract law, namely the law of excuses, in the context of smart contracts development. Smart contracts are supposed to secure actual performance, but to be able to do so appropriately, they need to take into account the possibility that a contract party may raise a valid excuse for non-performance of his obligations. Smart contracts should be able to deal with the possibility of at least some excuses; hence, this analysis may test the suitability of smart contracts for actual contracting. The chapter provides a comparative overview of excuses and hardship, culminating in a “common core” of the rules of various jurisdictions, and investigates whether and how excuses can be dealt with in smart contracts. This analysis shows some limitations of smart contracts, which leads to a more general discussion about possibilities and limitations of smart contracts.

This chapter seeks to discredit the popular belief that blockchains will revolutionize or disrupt commerce. More specifically, it aims to clarify that blockchains as such cannot serve as a technology or ideology for the decentralization of online marketplaces. To this end, the chapter examines the interrelated concepts of decentralization, disintermediation, trustlessness, and immutability. It is necessary to understand what those terms actually mean and how they affect actual, commercial practices. The chapter commences with a broad description of blockchains and introduces the important division between public and private blockchains, to demonstrate that only the latter could potentially serve as a technology that could provide a user-friendly and secure transacting environment. It confronts the practical implications of decentralization, focusing on the fact that the absence of formalized control usually translates into an absence of formalized governance processes.

China’s 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.

This chapter examines in the first place the formation of (blockchain-based) smart contracts. The term “smart contract” is used to refer to software programs that are often (but not necessarily) built on blockchain technology as a set of promises, specified in digital form, including protocols within which the parties perform on these promises. It is regularly said that smart contracts are neither legal contracts in the traditional sense nor are they smart and that the term therefore is a misnomer. The crucial question this chapter is trying to answer is whether the traditional (Common Law) concept of contract formation is seriously challenged by the rise of smart contracts. So are smart contracts the end of contract formation as we know it, or is it at the end just much ado about nothing? And if contract law is in principle fit for the formation of smart contracts, do they have features which do challenge the traditional contract law, and if yes what are those features? These are some of the questions this contribution is trying to answer.

Code is not the law. It is used to program the architecture of new (social) objects, such as the smart contracts placed on a blockchain. On the other hand, law is not the code. Both can be conceived as regulatory tools; however, law and codes operate through different modalities. Law will continue to reign supreme, but it should also use its force to require technology to self-regulate following certain principles.Examines the challenge of future technologies, such as advanced Artificial Intelligence (AI), to the way society is structured and the role of democratic government as both legislator and the guardian of the rule of law.

Chapter 15 derives some general features of smart contracts by examining the technological approach for these contracts proposed by Ethereum and Solidity language. It relies on the concept of ‘interfaces’ to designate the relationships between the computer code of a smart contract and other external elements. According to this chapter, these interfaces are the exact locations of the legal connections between a specific piece of software and the real world. In particular, it argues that the smart contract environment is not a ‘lawyer-free environment’ due to the fact that smart contracts would necessarily interfere with real world persons or institutions that would by the nature of our societies lead to legal issues.

Chapter 7 examines smart contracts’ ability to self-perform, self-enforce, and self-remedy and the remaining applicability of contract law and contract remedies. Smart contracts (coupled with blockchain technology) have created visions of self-executing, self-enforcing, and self-remedying contracts that eliminate the need for courts or arbitral tribunals to apply contract law to disputes. The theory goes that, since the possibility of breach is eliminated in such contracts, contract remedies become unnecessary.