ABSTRACT
Since Friedrich Kessler wrote ‘Contracts of Adhesion-Some Thoughts About Freedom of Contract’ in 1943, condemning narrow adherence to the principle of ‘freedom to contract’ in the face of large scale enterprises’ 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 Kessler’s world, where standard-form contracts were a tool for ‘excluding or controlling the “irrational factor” in litigation’ 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? …
Sillanpaa, Tiffany, Freedom to (Smart) Contract: The Myth of Code and Blockchain Governance Law (October 20, 2020), IALS Student Law Review 7, 2 (2020).
First posted 2020-12-19 07:31:56
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