Defining Smart Contracts: the Search for Workable
Legal Categories
Riccardo DE CARIA
ABSTRACT
This article investigates the legal dimension of smart contracts. In particular, it reviews the existing definitions of them in some of the main laws enacted and scholarly articles published so far, proposes its own version, and then moves on to consider to what extent new legal categories are warranted to deal with this apparently totally new way of making legally binding agreements.
The Need for Widespread Legal Definitions
Several scholars have started to investigate the topic of smart contracts. To be sure, the notion has been used for several years, long before the current blockchain revolution to which their revival is linked. In fact, the original meaning is different from the one this phrase has acquired in connection to the blockchain technology. This can give rise to some confusion, so there is arguably the need to try to provide some baseline clarification on the notion of
(decentralized) smart contracts1: we can indeed derive proper and (hopefully)
1 See M. L. PERUGINI & P. DAL CHECCO, ‘Smart Contracts: A Preliminary Evaluation’, December
2015, available at https://ssrn.com/abstract=2729548; M. RASKIN, ‘The Law and Legality of Smart Contracts’, 1 GEO. L. TECH. REV. 304 (2017), available at
https://www.georgetownlawtechreview.org/the-law-and-legality-of-smart-contracts/GLTR-04-2017/; A. SAVELYEV, ‘Contract Law 2.0: «Smart» Contracts As the Beginning of the End of
Classic Contract Law’, Higher School of Economics Research Paper No. WP BRP 71/LAW/2016, 2016, available at SSRN: https://ssrn.com/abstract=2885241 and in Information &
Communications Technology Law, Vol. 26, Issue 2 (June 2017), pp. 116-134; L. H. SCHOLZ, ‘Algorithmic Contracts’, in 20 STAN. TECH. L. REV. ZZZ (2017); J. SZCZERBOWSKI, ‘Place of
Smart Contracts in Civil Law. A Few Comments on Form and Interpretation’, Proceedings of the 12th Annual International Scientific Conference NEW TRENDS 2017. Published by: Private College of Economic Studies Znojmo, ISBN: 978-80-87314-90-6, ISSN: 2336-7431 (November 9, 2017), available at https://ssrn.com/abstract=3095933; G. JACCARD, ‘Smart Contracts and the Role of Law’ (January 10, 2018), available at https://ssrn.com/abstract=3099885 or
http://dx.doi.org/10.2139/ssrn.3099885; E. TJONG TJIN TAI, ‘Formalizing Contract Law for Smart
Contracts’ (September 18, 2017). Tilburg Private Law Working Paper Series No. 6/2017, available at https://ssrn.com/abstract=3038800 or http://dx.doi.org/10.2139/ssrn.3038800; P. CATCHLOVE,
‘Smart Contracts: A New Era of Contract Use’ (December 1, 2017), available at
https://ssrn.com/abstract=3090226 or http://dx.doi.org/10.2139/ssrn.3090226; R. O’SHIELDS, ‘Smart Contracts: Legal Agreements for the Blockchain’, 21 N.C. Banking Inst. 177 (2017); L. CONG, LIN WILLIAM & Z. HE, ‘Blockchain Disruption and Smart Contracts’ (January 10, 2018),
available at https://ssrn.com/abstract=2985764 or http://dx.doi.org/10.2139/ssrn.2985764; T.
HINGLEY, ‘A smart new world: blockchain and smart contracts’, available at
https://www.freshfields.com/en-gb/our-thinking/campaigns/digital/fintech/blockchain-and-smart-contracts/; R. KOULU, ‘Blockchains and Online Dispute Resolution: Smart Contracts as an Alternative to Enforcement’, 13 SCRIPTed 40 (2016); K. LAUSLAHTI, J. MATTILA, & T. SEPPÄLÄ,
‘Smart Contracts – How will Blockchain Technology Affect Contractual Practices?’, ETLA Reports No 68, (9.1.2017), available at https://pub.etla.fi/ETLA-Raportit-Reports-68.pdf .
sound legal consequences only from clear definitions. Before doing that, it
appears necessary to briefly consider also its technical premise, i.e. the blockchain technology. I will then review the main legislative and doctrinal definitions of (decentralized) smart contracts that have been put forward so far, and propose my own version. After that, I will move to paint a quick picture of the current legal framework on the subject. In the final paragraph, I offer my final remarks, particularly on the question whether this breakthrough technology also implies a legal revolution: do smart contracts require thoroughly new legal avenues to be developed, or is it instead more appropriate to simply adapt existing legal categories to the new reality?
Blockchain
For these reasons, it appears necessary to spend some words to define blockchain2
and distributed ledger technology in general3.
An arguably appropriate definition, provided by the UK Government Chief Scientific Adviser, describes the blockchain as “a type of database that takes a number of records and puts them in a block (rather like collating them on to a single sheet of paper). Each block is then ‘chained’ to the next block, using a cryptographic signature. This allows block chains to be used like a ledger, which can be shared and corroborated by anyone with the appropriate permissions”4.
Therefore, by applying the blockchain technology to smart contracts, they would be not only self-executing and self-enforcing, without any need for intermediaries but, in addition, every transaction would be automatically recorded in the
distributed database. Thus, blockchain-based smart contracts5 may be referred to
as “decentralized smart contracts”, given the absence of a central database/register.
What it is of the utmost importance is to be extremely precise when giving the definition, since it will inevitably have consequences on the legal analysis; at the same time, a definition which is too strict would inevitably be inadequate for a field which is moving so fast. Therefore it appears necessary to give a precise but elastic definition, capable of adapt to the next evolution of these technologies.
2 See also R. DE CARIA, ‘A Digital Revolution in International Trade? The International Legal Framework for Blockchain Technologies, Virtual Currencies and Smart Contracts: Challenges and Opportunities’, in VV.AA. “Modernizing International Trade Law to Support Innovation and Sustainable Development. Proceedings of the Congress of the United Nations Commission on International Trade Law, Vienna, 4-6 July 2017, Volume 4: Papers presented at the Congress”, United Nations, Vienna, 2017, p. 105 (available at
http://www.uncitral.org/pdf/english/congress/17-06783_ebook.pdf). The present work substantially borrows from this previous paper of mine and builds upon it, trying to shed some more light on the subject matter.
3 Another brief note on terminology is needed here: the terms blockchain (or block chain) and distributed/shared ledger are often used interchangeably.
4 Distributed Ledger Technology: beyond block chain, a report by the UK Government Chief Scientific Adviser, 2016, p. 17.
5 It is worth pointing out that the notion of ‘smart contracts’ could encompass any automatically-executed machine-based agreement (such as purchasing a snack from a vending machine), whereas blockchain-based smart contracts are a much narrower notion.
(Decentralized) Smart Contracts
As has been observed “a search of the term smart contract uncovers a myriad of definitions”6 and “a consensus definition […] for smart contracts has yet to be
reached”7.
Already more than 20 years ago, Szabo defined smart contracts as “a
computerized protocol that executes the terms of a contract”8 and argued that “the
general objectives of smart contract design are to satisfy common contractual conditions (such as payment terms, liens, confidentiality, and even enforcement), minimize exceptions both malicious and accidental, and minimize the need for trusted intermediaries. Related economic goals include lowering fraud loss, arbitration and enforcement costs, and other transaction costs”9. According to
another definition by the same author, a smart contract is “a set of promises, including protocols within which the parties perform on the other promises. The protocols are usually implemented with programs on a computer network, or in other forms of digital electronics, thus these contracts are "smarter" than their paper-based ancestors. No use of artificial intelligence is implied”10.
More recently, other scholars and legal operators have defined smart contracts as: - “self-executing electronic instructions drafted in computer code”11;
- “a piece of computer code that is capable of monitoring, executing and enforcing an agreement”12;
- a piece of “software, [in] which computer code binds two, or a multitude, of parties in view of the execution of predefined effects, and that is stored on a distributed ledger”13 ;
6 P. CATCHLOVE, ‘Smart Contracts: A New Era of Contract Use’ (December 1, 2017), p. 6, available at https://ssrn.com/abstract=3090226 or http://dx.doi.org/10.2139/ssrn.3090226. 7 L. W. CONG & Z. HE, ‘Blockchain Disruption and Smart Contracts’ (January 10, 2018), p. 11, available at https://ssrn.com/abstract=2985764 or http://dx.doi.org/10.2139/ssrn.2985764.
8 N. SZABO, ‘Smart Contracts’, 1994, unpublished, available at
http://www.fon.hum.uva.nl/rob/Courses/InformationInSpeech/CDROM/Literature/LOTwinterscho ol2006/szabo.best.vwh.net/smart.contracts.html; N. SZABO, ‘Formalizing and Securing
Relationships on Public Networks’, First Monday, [S.l.], 1997, available at:
http://ojphi.org/ojs/index.php/fm/article/view/548/469; N. SZABO, ‘The Idea of Smart Contracts’,
1997, available at http://szabo.best.vwh.net/idea.html; SZABO, N., ‘Secure Property Titles with
Owner Authority’, 1998; see also MARK S. MILLER, ‘Computer Security as the Future of Law’, 1997, available at http://www.caplet.com/security/futurelaw/.
9 N. SZABO, ‘Smart Contracts’, 1994, unpublished, cit..
10 N. SZABO, ‘Smart Contract Glossary’, 1995, unpublished, available at
http://www.fon.hum.uva.nl/rob/Courses/InformationInSpeech/CDROM/Literature/LOTwinterscho ol2006/szabo.best.vwh.net/smart_contracts_glossary.html, cited by R. KOULU, ‘Blockchains and Online Dispute Resolution: Smart Contracts as an Alternative to Enforcement’, 13 SCRIPTed 40, 54 (2016).
11 R. O’SHIELDS, ‘Smart Contracts: Legal Agreements for the Blockchain’, 21 N.C. Banking Inst.
177 (2017), p. 179.
12 T. HINGLEY, ‘A smart new world: blockchain and smart contracts’, available at
https://www.freshfields.com/en-gb/our-thinking/campaigns/digital/fintech/blockchain-and-smart-contracts/.
- “digital contracts allowing terms contingent on decentralized consensus that are self-enforcing and tamperproof through automated execution”14;
- “[...] event-driven programs, with state, that run on a distributed,
decentralized, shared and replicated ledger (blockchain) and that can take custody over and transfer assets on the ledger”15.
Recently, Arizona approved a bill which contains a legal definition of smart contract: “an event-driven program, with state, that runs on a distributed, decentralized, shared and replicated ledger and that can take custody over and instruct transfer of assets on that ledger”16.
It may be said that there is a limited consensus on the core definition according to which, apart some nuances, smart contracts are words written in computer
language which are automatically executed by a machine; some add to the definition the requirement that such contracts run on blockchain or similar distributed ledger technologies17 (and, thus, may be called decentralized smart
contracts)18.
Thus, we can define decentralized smart contract as any digital agreement which is a) written in computer code (thus, a software), b) run on blockchain or a similar distributed ledger technologies (thus, decentralized) and c) automatically executed without any need of human intervention (thus, smart).
The Current Legal Framework
To be sure, an international legal framework tailored on blockchain technologies and smart contracts does not exist19: however, the topic is clearly under
consideration at the legislative/regulatory level: as it has been said, “today is all
13 G. JACCARD, ‘Smart Contracts and the Role of Law’ (January 10, 2018) p. 4, available at
SSRN: https://ssrn.com/abstract=3099885 or http://dx.doi.org/10.2139/ssrn.3099885.
14 L. W. CONG & Z. HE, ‘Blockchain Disruption and Smart Contracts’ (January 10, 2018), p. 11, available at SSRN: https://ssrn.com/abstract=2985764 or http://dx.doi.org/10.2139/ssrn.2985764. 15 J. J. SZCZERBOWSKI, ‘Place of Smart Contracts in Civil Law. A Few Comments on Form and
Interpretation’ (November 9, 2017) in the abstract and similarly in the introduction. Proceedings of the 12th Annual International Scientific Conference NEW TRENDS 2017. Published by: Private College of Economic Studies Znojmo, ISBN: 978-80-87314-90-6, ISSN: 2336-7431, available at
https://ssrn.com/abstract=3095933.
16 Arizona House Bill 2417, available at https://www.azleg.gov/legtext/53leg/1R/laws/0097.htm
and at https://legiscan.com/AZ/text/HB2417/2017.
17 E. TJONG TJIN TAI, ‘Formalizing Contract Law for Smart Contracts’ (September 18, 2017) in the introduction. Tilburg Private Law Working Paper Series No. 6/2017, available at SSRN:
https://ssrn.com/abstract=3038800 or http://dx.doi.org/10.2139/ssrn.3038800: “While systems for smart contracts in the general meaning of the term can be and have been created without relying on bitcoin or blockchain technology, contemporary interest in the marketplace focuses on smart contracts that do rely on a virtual currency with blockchain technology”.
18 See R. DE CARIA, ‘A Digital Revolution in International Trade?’ cit., at 107 (available online at http://www.uncitral.org/pdf/english/congress/17-06783_ebook.pdf).
19 For an exhaustive picture of the current legal framework all over the world, see P. TASCA,
‘Digital Currencies: Principles, Trends, Opportunities, and Risks’, Deutsche Bundesbank and ECUREX Research, ECUREX Research Working Paper, 7th of September 2015 (version: October 2015), pp. 43 ff.
about blockchain brainstorming”20 and at national/regional level, particularly in
the US, some regulation have been or are going to be enacted.
As was observed, in fact, “the States of Delaware, Vermont, Nevada, Arizona, Hawaii, New Hampshire and Illinois in the United States all have sought
legislation, or are seeking to pass legislation to recognise and capitalise upon the use of smart contracts and blockchain technology”21.
Speaking of smart contracts, their legal status is totally “unclear”22, and very little
has been written with this regard23. However, the fact that there is no specific
regulation on such issues does clearly not mean that current laws and general principles of law may not be applicable to them, or that they are unregulated at all: blockchain and smart contracts are indeed pieces of software24.
The Need for Workable Legal Categories (but not New Ones)
Considering what we observed above, what is the legal nature of smart contracts? Do they fall within traditional legal categories?
Given the lack of space I will focus my analysis on the following 3 questions, which I consider fundamental.
Are smart contracts:
a) “Goods” protected by intellectual property laws? b) A form of pre-emptive help?
c) Just ordinary agreements in disguise?
Once again, the possible replies depends on the chosen definition.
In any case, from a technical point of view, it seems that a smart contract is simply a piece of computer code or software.
a) With regard to the traditional intellectual property categories, it must be said that, generally speaking, smart contracts (and blockchain) may and should fall within the sphere of protection of copyright, while it is difficult to argue that they are a new kind of intellectual property, giving the fact that it would not be
recognized as such at international or regional level in absence of a clear regulation on the subject matter.
Moreover, the protection through patents should also be considered as possible, as shown by the rising number of applications that may be found regarding these technologies25.
20 Digital Transformation in Government and Blockchain Technology, speech delivered by Minister for Cabinet Office Matt Hancock at D Digital Catapult, Kings Cross, London on the 26th
April 2016, available at https://www.gov.uk/government/speeches/digital-transformation-in-government-and-blockchain-technology.
21 P. CATCHLOVE, ‘Smart Contracts: A New Era of Contract Use’ (December 1, 2017), p. 2,
available at SSRN: https://ssrn.com/abstract=3090226 or http://dx.doi.org/10.2139/ssrn.3090226. 22 Virtual Currencies and Beyond: Initial Considerations, IMF Staff Discussion Note –
SDN/16/03, January 2016, p. 23. 23 See above note 1.
24 A. SAVELYEV, ‘Contract Law 2.0: «Smart» Contracts As the Beginning of the End of Classic
Contract Law’, Higher School of Economics Research Paper No. WP BRP 71/LAW/2016, 2016, p. 20: “it is possible to argue that each Smart contract by its legal nature is also a computer program in a meaning of IP law”.
In addition, - even though the answer is probably negative - one may wonder if the blockchain per se may be protected as a database, either through copyright protection if “by reason of the selection or arrangement of their contents constitute intellectual creations”26 or – in EU - through a sui generis right granted by the
Directive 96/9/EC on the legal protection of databases if “there has been
qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents”27.
But does someone own the blockchain?
Given the above-mentioned considerations regarding copyright, patents and sui generis right it is extremely difficult to answer the question and the reality is that there is a strong uncertainty as to who owns blockchain28.
With regard to the last two categories, on the one hand, some have recently argued that a “smart contract can be regarded as a legally-binding agreement”29; on the
other, it has been said that “smart contracts are simply a new form of pre-emptive self-help”30.
b) Another interesting point that was made by the scholarship is the idea that smart contracts are simply a new form of self-help measures, which parties to a contract adopt in order to ensure the performance of their agreements without the need of judicial enforcement31. This is consistent with the above-mentioned
observation that what usually happens, at least at the moment, is that two parties reach an agreement and thereafter translate part of it into a smart contracts, and then leave the duty to perform it to the machine. In this case, all the relevant legal questions arising from smart contracts must be dealt by the competent judge under the applicable contract law.
It would, therefore, appear to be necessary, if such contracts have to be adopted in day-to-day trade practice, a general agreement (or at least an ad hoc provision) that establishes, among the other things, that, in case of need of judicial
enforcement, related to the general agreement itself, or to the smart contracts depending upon it, what is the applicable law and which judge has the jurisdiction.
25 A research on Patentscope showed 449 results for the term “blockchain”, 184 for the term “smart contract” and 63 for the term “smart contracts”. See Patentscope
(https://patentscope.wipo.int/search/en/search.jsf). Last accessed 15.3.2018. 26 TRIPs art. 10(2).
27 Art. 7(1) of the Directive 96/9/EC on the legal protection of databases.
28 B. CLARK, ‘Blockchain and IP law: a match made in crypto heaven?’, Wipo Magazine, February 2018, available at: http://www.wipo.int/wipo_magazine/en/2018/01/article_0005.html. 29 A. SAVELYEV, A., ‘Contract Law 2.0: «Smart» Contracts As the Beginning of the End of
Classic Contract Law’, Higher School of Economics Research Paper No. WP BRP 71/LAW/2016, 2016, p. 10 and ff.
30 M. RASKIN, ‘The Law and Legality of Smart Contracts’, 1 GEO. L. TECH. REV. 304 (2017), available at
https://www.georgetownlawtechreview.org/the-law-and-legality-of-smart-contracts/GLTR-04-2017/.
31 M. RASKIN, ‘The Law and Legality of Smart Contracts’, 1 GEO. L. TECH. REV. 304 (2017),
available at https://www.georgetownlawtechreview.org/the-law-and-legality-of-smart-contracts/GLTR-04-2017/, pp. 314 ff..
c) Finally, with regard to the idea that smart contracts are themselves autonomous and self-sufficient legally-binding agreements, it shall be noticed that in fact they will almost always represent the translation of part of an already reached
agreement into digital code: this is because they simply perform automatically the contract but they can enforce only provisions that may be executed in the digital world. In this regard, it has been said that smart contracts do not create a proper obligation in its legal meaning32.
Such conclusion, though, seems difficult for me to be agreed upon. Firstly, even considering smart contracts as legally-binding agreements, they would a fortiori be subject to contract law, and it is clear that the applicable law will have a strong influence on them; for example, with regard to illegality and unconscionability, every country has its own peculiar rules, and a contract may well be valid in one place and null and void in another one.
Moreover, smart contracts do clearly create obligations which stand independently from the digital code of the smart contracts: if for example there is a bug in a smart contract between A and B, and A has undertaken to transfer her property in exchange for an agreed sum of money to B, she would still be obliged to transfer her property to B even if the smart contract does not work (similarly, if a vending machine does not deliver the chosen good after the insertion of the coin, it is clear that the owner of the selling machine is still obliged to perform and deliver the good).
In any case, by entering into a smart contract, parties undertake to perform the obligation therein encapsulated; in addition, since – as was said – almost always smart contracts will be a translation of a precedent agreement already reached, the obligations of parties would nonetheless be, at the very least, to start the execution of the smart contract (i.e. to press the button that starts to operate the smart contract).
Generally speaking, in spite of the conceptual dissimilarities, there actually do not appear to exist too many differences between the functioning of a smart contract and that of a mechanical vending machine, or that of a software that suspends the supply of a service in case of missing payment (e.g. Netflix allows users to legally watch streaming videos in exchange for a monthly payment; in case of missing payments, the software will simply suspend the service, not allowing users to log in33): the fact that the interruption is performed by humans, by software, or by
smart contracts with a record in the blockchain, does not in practice seem make a relevant difference legally-wise.
32 A. SAVELYEV, ‘Contract Law 2.0: «Smart» Contracts As the Beginning of the End of Classic Contract Law’, Higher School of Economics Research Paper No. WP BRP 71/LAW/2016, 2016, pp. 17 ff.
33 https://help.netflix.com/legal/termsofuse?locale=en&country=IT: “If a payment is not
successfully settled, due to expiration, insufficient funds, or otherwise, and you do not change your Payment Method or cancel your account, we may suspend your access to the service until we have obtained a valid Payment Method”.
I therefore agree with the scholars34 who concluded that, “independently from
being digitally expressed, every contract is ruled and guaranteed by the law and the parties will be free to file the Court for compensation in case a void agreement has been performed or execution has been spoiled by a malfunctioning due to a system bug”35 and that “smart contracts do fall within existing contract law
principles”36. In other words, “smart contracts will not require any special set of
new laws or regulations. Instead, existing legal principles will be adapted and perhaps modified, either statutorily or judicially, to deal explicitly with smart contracts and other emerging technologies-albeit most likely with a substantial lag time between adoption of the technology and adjustment of the law”37.
To sum up, the existing legal framework is arguably more than adequate to accommodate even this revolutionary form of deal-making, without the need to create new legal categories that, contrary to a common belief among regulators and policy-makers, are not truly warranted in this case, such as in many similar ones38.
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