ABSTRACT
The current narrative proliferates misconceptions and incorrect nomenclature. Intent on forcing smart contracts into the analytical framework of conventional contracts, it glosses over doctrinal and conceptual difficulties, including the fact that computer programs cannot be agreements. The unfortunate terminology, if taken literally, places smart contracts in a category that they do not belong to. Smart contracts fulfil a different function that conventional contracts. They can be analyzed from the perspective of contract law – but only as technologies facilitating or automating certain aspects of contracting, not ‘as if’ they were contracts. Legal scholarship must become more attuned to the descriptions of smart contracts found in technical scholarship as well as to their practical applications. This might result in a more commonsensical approach to this technological phenomenon – one that is more focused on their function, not on their form.
Mik, Eliza, Deconstructing Smart Contracts (October 6, 2022). Forthcoming, Emerging Issues at the Intersection of Commercial Law and Technology, Nancy Kim and Stacy-Ann Elvy eds; Tilburg Law School Research Paper.
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