Abstract
Technology creates new opportunities for socio-economic relations, commercial exchange and overcoming national borders, allowing to conclude and execute agreements more quickly regardless of the distance between the parties. However, technology tests the contractual institution making it necessary to adapt it to immediate, transnational, automatic uses, and to the legal issues deriving from them. This chapter aims to analyze the evolution of the relationship between technology and contract, through the fil rouge of contract automation, with specific regard to the telematic agreements and the next frontier of “smart contracts”.
Alberto Gambino is Professor of Civil Law at the Porettore European University in Rome, Italy.
Andrea Stazi is Associate Professor of Comparative Law at the European University of Rome, Italy.
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Notes
- 1.
- 2.
- 3.
With reference to the regulation of cyberspace and the so-called Lex Informatica proposed in the US doctrine as an extension of Lex Mercatoria to cyberspace, see among others: Marrella and Yoo (2007); Lessig (1999); Reidenberg (1998). For the resilience of contract law, see e.g.: Kidd and Daugthrey (2000); Sommer (2000).
- 4.
The term telematics derives from the Greek adverb “tele-” which means distant and from the suffix “-ema” which means functional element that gives shape to something. Thélème was also the imaginary abbey with which Gargantua, a character conceived by Francois Rabelais, French humanist of the sixteenth century, foreshadowed a world of complete freedom. Unlike all the others, it was an abbey without walls and external barriers: everyone could enter it, well received, someone could be lost. The concept of telematics, therefore, indicates a set of IT services offered and used, in real time, through a telecommunication network, which may act as communication tools between the parties. On the subject, one may also see: Gambino et al. (2019), pp. 2 ff.
- 5.
- 6.
The use of an electronic agent, which, through complex processing mechanisms, leads to the determination of an artificial, predetermined negotiating will, even if, with the technological evolution, potentially increasingly differentiated from that of the user—introduces a path alternative beyond the control of the party in the traditional production process and manifestation of the will to negotiate. In this case, the results of the bargaining are not always predictable upstream and it cannot be excluded that the electronic agent will complete the contracts at least in part unwanted or beyond the expectations of the user of the program.
- 7.
- 8.
French doctrine lists electronic contracts and “conclus et exécutés par la télématique” (par exemple, procédures de réservation électronique) contracts; - soit conclus para la télématique mais exécutés en dehors de cette technique (par exemple procédures de commande par terminal); - soit conclus en dehors de la télématique mais exécutés par elle (par exemple contrats d’accès aux banques de données)”: Linant De Bellefonds and Hollande (1988), p. 141.
- 9.
- 10.
- 11.
Le Tourneau (2006).
- 12.
The term “app” is an abbreviated form of “application”, which in practice is used especially with regard to mobile apps for mobile phones, tablets, etc. The majority of the applications are found in real virtual stores called app stores. The contracts concluded through the app appear similar to the hypothesis of the contract concluded through access to the site, since also in this case it is a form of communication one to many and not one to one as in the contracts via email.
- 13.
These typologies can be framed in the inter-absent relationships. However, they have at least an unusual aspect with respect to them, in that the parties do not follow the normal logical-chronological sequence between the moment of processing the communication and that of sending the reply, or at least this sequence is strongly compressed. So, while in the contact de visu the assignment that follows an announcement can be easily corrected, according to canons of reasonableness, in telematics the screen of the program does not allow to easily identify neither the professional quality of the offeror nor the legal binding nature of the commitment undertaken; see: Gambino (1999), pp. 1460 ff.
- 14.
In this perspective, the spending of the credit card manifests the willingness to legally bind the purchaser, and has real efficacy involving the conclusion of the contract for the beginning of execution, according to a unilateral contract scheme. See: Gambino (1997), pp. 138 ff.
- 15.
Provided e.g. in the Italian legal system at Art. 1335 of the Civil Code and in the common law systems in the so-called mailbox rule; in this regard, see amplius, below in the following paragraph.
- 16.
See: European Union (2002), Arts. 2: 101 and 2: 103. In the same sense, art. 2: 204 states that: “any form of declaration or behavior of the oblate that indicates acceptance of the proposal constitutes acceptance”, and art. 2: 211 states that: “even when the contract conclusion procedure is not structured in proposal and acceptance, the rules of this section apply equally with the appropriate adaptations”.
- 17.
- 18.
- 19.
Term composed of net (network) + etiquette (“label”).
- 20.
- 21.
- 22.
- 23.
The rule was established in Adams v. Lindsell (1818) 106 ER 250, and later accepted in the United States: Mactier’s Adm’rs v. Frith, 6 Wend. 103 (NY 1830). In doctrine, see: LeRoy Miller and Jentz (2010); Nimmer (1996), pp. 222 ff.; Rawls (2009), pp. 205 ff.; Farnsworth (2016), p. 916; Maniruzzaman (2001), p. 487. The leading case on the matter is a decision of the British High Court on the case Mondial Ship** & Chartering BV v Astarte Ship** Ltd., [1995] CLC 1011. The case assessed the rituality of the declarations of legal relevance made by e-mail communications, as well as the operation of the same where concerning the withdrawal from its contractual obligation, manifested by sending an electronic communication within the deadline. The Court opted for the applicability of the rules relating to inter absent contracts, based on the so-called ship** principle, or mailbox rule, which identifies the moment of consent in the act of sending the declaration by the oblate (i.e. the accepting subject). Having to establish the time to which the withdrawal dated, considering that it had to be activated not before a certain term and that the relative declaration had been sent a few minutes before the same term, but coinciding with the non-working weekend, the Court ended up stating the full operation of the withdrawal declaration, in light of the fact that it would have become known only on the first following business day.
- 24.
See art. 11 of Directive 2000/31/EC and artt. 1326–1335 of the Italian Civil Code, while in France the Civil Code does not provide for a solution and the French courts have generally decided these questions on a case by case basis. Bell et al. (1998), p. 312, however, note that there seems to be a preference among the French courts for acceptance at the time and place of dispatch. In the Italian legal system, art. 1335 of the Civil Code establishes a presumption of knowledge iuris tantum with respect to the declaration sent to the address of the recipient, therefore at the time of the knowledge or knowability of the communication by the latter. Presumption, therefore, that can be won by proof against the recipient that it was, without fault, in the impossibility of having news of the communication.
In Germany, the contract is concluded when the acceptance reaches the offeror. This rule can be inferred from § 130(1) BGB, according to which any declaration of intention—being it an offer, a revocation of an offer, an acceptance or another declaration—directed to an absent person becomes effective when it reaches that person. See Kotz (2012), para 99; Flume (1979), p. 657; Beale et al. (2019), p. 257. Zweigert and Kötz (1998), p. 362 state that every declaration of will is effective as soon as it comes into the “sphere of influence” of the addressee. They take the old school example of a bird-lover that chooses not to empty the letter-box in his garden for fear of affrighting the tomtits within; in that case, the declaration is treated as having arrived. The concept of reaching (zugehen) is well explained in the Delivery to a housemaid case, even though it concerns an offer. In that case, the Reichsgericht stated that an offer becomes effective when the letter or the telegram containing it has been delivered at the offeree’s house, regardless of whether the offeree has been informed of the offer. See RG, 25 October 1917 RGZ 91, 60 (delivery to a housemaid).
- 25.
Regarding the complex interaction between the provisions adopted in the Convention on contracts for the international sale of goods and the Convention on the use of electronic communications in international contracts, see: Martin (2008), pp. 484 ff.
- 26.
Rawls (2009), pp. 207 ff.; Mik (2009), p. 8. UCITA denies the application of the mailbox rule for electronic messages; see: Kierkegaard (2007), p. 37. Watnick (2004), p. 197, believes that since there is no clear default rule for electronically sent acceptance times, the mailbox rule should be maintained for electronic acceptances of contracts not covered by UCITA.
- 27.
Moringiello (2005) highlighted how in practice consumers perceive transactions on paper as different from electronic transactions.
- 28.
See articles 9 ff. Directive 2011/83/EU, which has extended the provisions of Directive 97/7/EC.
- 29.
- 30.
Macneil (1964), p. 953, regarding the time that passes from the offer and acceptance, notes that it is not surprising that the Anglo-American courts have kept it as short as possible by adopting the mailbox rule. Indeed, it can be said that one of the main functions of this rule is to reduce the duration of the offeror’s right of revocation. Furthermore, not only does the rule itself shorten the revocation period, but it also removes an element of uncertainty from the contractual relationship. By comparing the risks, the bidder is already exposed to the possibility that his offer is never received by the counterparty; see: Rawls (2009), pp. 212 ff.
- 31.
See: Fasciano (1997), p. 222.
- 32.
In this regard, see: Macneil (1964), p. 954; Mik (2009), p. 9. “Receiving” an acceptance does not necessarily correspond to the recipient’s actual knowledge. In electronic bargaining, it has been argued that receipt of acceptance occurs when it has entered the information processing system designated for such messages by the tenderer; see: Rawls (2009), p. 211.
- 33.
In this regard, see again: Rawls (2009), pp. 204 ff.
- 34.
- 35.
Winn and Haubold (2002), p. 575, recognize a possible interference with the national provisions, mentioning § 130.1 of the German BGB regarding the moment in which the contractual declaration is considered as received. Neither the UETA nor the E-Sign take a position on the applicability of the rule of the shipment or mailbox or of the reception for the formation of the contract. Rawls (2009), pp. 209 ff., proposes the adoption of the reception rule for all contracts in the United States, however formed, in order to ensure consistency in the decisions on the subject at national and international level.
- 36.
For example, a home screen, or a pop-up window, or an intermediate review image.
- 37.
This step is only procedural and does not change the solutions adopted by national laws for the formation of contracts; see: Granieri (2017), p. 19.
- 38.
- 39.
Therefore, the intention to bind to the offer must be explicitly expressed, since the presence of the essential elements of the contractual proposal is not considered a sufficient requirement. In substantial compliance with the common law principle, it is also art. 2.2 of the UNIDROIT Principles of International Commercial Contracts of 1994, according to which: “A proposal for concluding a contract constitutes an offer if it is sufficiently defined and indicates the intention of the offeror to be bound in case of acceptance”.
- 40.
- 41.
See: US District Court, Southern District of New York, September 9, 1996; Memorandum, Attorney General, State of Minnesota, County of Ramsey, Second Judicial District, C6-95-7227, December 1996, p. 6 s.
- 42.
- 43.
Weill and Terré (1986), p. 142, define the offer as “une declaration unilatérale de volunté adresée par une personne à une autre, et par laquelle l’offrant proposed à autrui la conclusion d’un contract”. According to Ghestin (1988), p. 219: “On peut a priori définir l’offre … comme une manifestation de volunté unilatérale par laquelle une personne fait connaître son intention de contracter et les conditions essentielles du contrat”. The invitation, the French expression of the invitation to treat, distinguishes between the non-binding offer subsystems the invitation to faire des offres and the offer avec réserves or sans engagement; see: Planiol and Ripert (1953), pp. 145 ff.
- 44.
Weill and Terré (1986), p. 220.
- 45.
The problem of the scarcity of the goods available to the seller is resolved here with the application of the “first come, first served” principle, since “est de la nature des choses que l’offre au public soit réservée aux premiers acceptants dans les limites des quantités offertes”; see.: Ghestin (1993), p. 266.
- 46.
Examples of offers to the public can be found in the products of a supermarket that have exhibited the sale price, in the products offered in teleshop** etc. According to art. 1336, par. 2, the revocation of the offer to the public in the same forms as the offer or in another equivalent is effective also for those who have not heard of it. It is not necessary, therefore, that anyone who has heard of the offer must then know of the revocation in order for it to be effective also against her. It is sufficient that offer and revocation are carried out in the same forms.
- 47.
In this regard, one may also see: Stazi (2004), p. 176.
- 48.
See e.g.: Cass. civ., 3e, 27 June 1973 has ruled that in a hypothesis of bail (lease), the offer must mention “la chose louée, le montant du loyer, et la date possible d’entrée en jouissance”.
- 49.
According to § 145 BGB, the offeror is bound by his or her offer and cannot withdraw it.
- 50.
For example, in the Aeroplane Charter case (BGH, 8 March 1984, NJW 1984, 1885) the Federal Court of Justice has declared that the use of the words “without engagement” does not necessarily prevent a communication from constituting an effective offer. Indeed, according to the principle of good faith, the proposer should have expressly rejected the offer. On the contrary, his or her silence should count as acceptance. See Beale et al. (2019), p. 362.
- 51.
In this regard, see: Granieri (2017), pp. 19 ff., who notes that in mass market transactions the practice of standard terms has provoked discussions on consensus which are now superseded by the so-called “Rolling contracts”, which continue until someone decides to terminate them, rather than until a certain date (such contracts are generally known for example in the practice of insurance relationships); Nimmer (1996), p. 212; Radin (2000), who distinguishes between “contract as consent” and “contract as product”. For a discussion of the reconstruction of individual will in contract theory and the adoption of a subjective consensus theory linked to liberalism, see: Weitzenboek (2001), p. 218.
- 52.
Which provides the ecosystem within which the idea of smart contracts proposed by Nick Szabo in the nineties of the last century can be realized, which at the time still seemed substantially utopian; see: Szabo (1997), Szabo (1996); and Szabo (1994), who argued that the objectives of such contracts would be to fulfill contractual obligations such as payment terms, privileges, confidentiality and even enforcement, and to minimize both harmful and accidental exceptions and the need for trusted intermediaries.
- 53.
- 54.
Multi-signature, or “multisig”, verification technology allows you to stop running a smart contract until several parties have signed the transaction with their private keys. These can include not only the parts of the smart contract, but also an external third party, a so-called referee. See: Werbach and Cornell (2017), p. 345. Furthermore, the code of most smart contracts contains a so-called kill switch. Solidity, the language used to write smart contracts on the Ethereum Blockchain, allows an operation called self-destruction, which removes the smart contract code from the Blockchain; see: Eenmaa-Dimitrieva and Schmidt-Kessel (2019), pp. 84–85.
- 55.
The source code, in computer science, is the text of an algorithm of a program written in a programming language by a programmer during programming. It therefore defines the flow of execution of the program itself. See: Wikipedia, “Source code”. https://it.wikipedia.org/wiki/Codice_sorgente. Accessed 20 Nov 2020.
- 56.
Thus, for example, a smart contract was created that simulates the mechanism for a public funding campaign, the so-called crowdfunding, with fifty-six lines of computer code (see: http://www.mintchalk.com/c/68f3e. Accessed 20 Nov 2020). The creation of smart contract models, in practice, could lead to a reduction in the role of lawyers in the moment of contract formation, especially with respect to those that can be easily modeled; on this point; see: Corrales et al. (2019).
- 57.
In this regard, see among others: Chamber of Digital Commerce – Smart Contracts Alliance (2018), pp. 10 ff.
- 58.
See: De Filippi and Wright (2015), p. 11, who found that, while at the beginning smart contracts were mainly developed to automatically execute derivatives, options, futures and swaps, later they began to be used to facilitate the sale of goods on the network between unrelated persons without the need for a centralized organization. The authors cite in this sense the example of OpenBazaar, an open source service aimed at creating a decentralized global market in which people can buy and sell products directly, without intermediation costs or centralized control (see: https://openbazaar.org. Accessed 20 Nov 2020).
- 59.
Like the multi-signature or self-destruct assumptions mentioned above, but also functions like “call” (which accepts an arbitrary number of arguments of any type), “enums” (a way to create a user-defined type), “self-destruct”, and also variable functions that allow the smart contract to process inputs external; in this regard, see: Juels and Marino (2016).
- 60.
Called for example “gas” on the Ethereum platform; see: https://ethereum.stackexchange.com/questions/3/what-is-meant-by-the-term-gas. Accessed 20 Nov 2020.
- 61.
On this point, see: Jaccard (2017), p. 7.
- 62.
- 63.
See e.g.: Idelberger et al. (2016).
- 64.
- 65.
- 66.
See: Ryan (2017).
- 67.
In this regard see: Borgogno (2019), pp. 8 ff.
- 68.
- 69.
On this point see: Sklaroff (2017), pp. 282 ff.
- 70.
Werbach and Cornell (2017), pp. 318 and 352 ff.
- 71.
Savelyev (2017), pp. 120 ff.
- 72.
In this regard, see: De Filippi and Wright (2015), p. 25.
- 73.
- 74.
- 75.
In this sense, see: Burnham et al. (2009).
- 76.
Thus: De Filippi and Wright (2015), p. 25.
- 77.
By pseudonymity we mean the possibility that, although a person is not identifiable with his real name, such identification can still take place through the acquisition of further information about him, such as a pseudonym, an IP address, a current account, etc.; on the subject, see: Article 29 Data Protection Working Party (2014), pp. 20 ff.
- 78.
On this point, see: European Bank for Reconstruction and Development, Clifford Chance (2018), pp. 22 ff.
- 79.
Cardozo Blockchain Project (2018), pp. 365 ff.
- 80.
- 81.
- 82.
Unless of course the parties could terminate the contract if they decide they do not want to remain tied to it.
- 83.
From the merger of law and code it follows, therefore, that the only way to violate the law is to effectively break the code.
- 84.
- 85.
A case of smart contracts activated by external inputs is, for example, that of the insurance policies proposed by AXA and Etherisc, insurance companies that offer policies that compensate travelers who suffer flight delays or cancellations. Flight information is acquired automatically and in real time by an oracle company indicated in the contract and the compensation is paid automatically.
- 86.
In this sense, see: Sokolov (2018), p. 10.
- 87.
Mik (2017), pp. 292 ff.
- 88.
On this point, see: Giuliano (2019).
- 89.
- 90.
- 91.
This would allow the generalized implementation of a so-called metered Internet, where stocks are tied to micro-payments through related smart contracts. Since cryptocurrencies and smart contracts greatly reduce transaction costs, in particular, they allow artists, musicians, authors, etc. to automatically collect royalties inherent to the copyrights on their works every time they are viewed or used. In this regard, see: De Filippi and Wright (2015), pp. 29 ff.; Wallach (2014).
- 92.
Wendehorst (2016).
- 93.
On this point, see again: De Filippi and Wright (2015), pp. 14 ff.
- 94.
The workshop took place on 6–7 May 2019 in Rome. To see the summary of the discussions and conclusions of the workshop: https://www.unidroit.org/89-news-and-events/2663-uncitral-unidroit-workshop-on-smart-contracts-artificial-intelligence-and-distributed-ledger-technology-summary-of-conclusions-published. Accessed 20 Nov 2020.
- 95.
European Commission (2018).
- 96.
European Parliament resolution of 3 October 2018 on distributed ledger technologies and blockchains: building trust with disintermediation (2017/2772(RSP)) P8_TA-PROV(2018)0373. In particular, see paragraphs from 36 to 38 of the Resolution.
- 97.
For instance, the Arizona House Bill No. 2417 (available at https://www.azleg.gov/legtext/53leg/1R/laws/0097.htm (accessed 20 Nov 2020) provides that: “B. A record or contract that is secured through blockchain technology is considered to be in an electronic form and to be an electronic record; C. Smart contracts may exist in commerce. A contract relating to a transaction may not be denied legal effect, validity or enforceability solely because that contract contains a smart contract term’; E(2). “smart contract” means 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”. The 2018 Malta Digital Innovation Authority Act (available at http://justiceservices.gov.mt/DownloadDocument.aspx?app=lp&itemid=29080&l=1. Accessed 20 Nov 2020) defines a smart contract as “a form of innovative technology arrangement consisting of: (a) a computer protocol; and, or (b) an agreement concluded wholly or partly in an electronic form which is automatable and enforceable by execution of computer code, although some parts may require human input and control, and which may be also enforceable by ordinary legal methods or by a mixture of both”. In Italy, article 8-ter(2) of Law no. 12 of 11 February 2019 converting Decree no. 135 of 14 December 2018, also called “Simplification Decree”, gives a definition of smart contract and determines when it can satisfy the requirement of the written form.
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Gambino, A.M., Stazi, A. (2024). Contract Automation from Telematic Agreements to Smart Contracts. In: Heidemann, M. (eds) The Transformation of Private Law – Principles of Contract and Tort as European and International Law. LCF Studies in Commercial and Financial Law, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-031-28497-7_27
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