https://akademicka.com.pl/index.php?detale=1&a=2&id=61477&fbclid=IwAR3uSJg1ckmHvppqAxmTl3EtLPT7CNiWaJlW3wtraJMbHKVp9IJfPUQTrQshttps://books.akademicka.pl/publishing/catalog/book/285Abstract (ENG):
Chapter I of the paper focuses on introducing the reader to terminology relevant to the issues of smart contracts and distributed database (i.e. blockchain). It presents the historical and technical outline of these two technologies. The most important advantages and disadvantages (risks) associated with the use of these instruments in trading are briefly pointed out, and the reasons for the wide interest in the discussed technologies within the contemporary legal science are generally explained.
Chapter II formulates the basic features of smart contracts and presents their underlying technical and legal assumptions. Despite the fact that smart contracts have already been analyzed in the science of law, and have even been subject to a number of regulations in foreign jurisdictions, it is still a very difficult task to make a coherent and uniform arrangement of their constitutive features. In response to this problem, a doctrinal proposal is presented to divide smart contracts as sensu stricto and sensu largo. The legal significance of smart contracts also appears to be problematic. The question of a possible conflict of legal and digital jurisdiction and the place of smart contracts in classical contract law is clarified, in particular the question of the general possibility of qualifying a smart contract as a "contract" in the civil law sense. The issue of possible separate legal subjectivity of smart contracts is also considered. Furthermore, the paper presents the concept of a smart contract sensu stricto as – with reference to the relational theory of contracts – a modern form of the discrete contract.
In Chapter III, smart contracts are analyzed from the perspective of classical civil law categories in order to examine whether they can be effectively described using these categories. It is shown there that a smart contract can be used to effectively make a declaration of will, and that in light of Articles 60 in fine and 61 § 2 of the Civil Code, this happens, as a rule, at the moment of "payment" (validation) of the transmission of a given message on the blockchain. This part examines the type of the so-called automatic declarations of will and the issue of admissibility of anonymous trading (in which the parties do not identify themselves using personal data). The issue of the form proper for this type of legal action, as a documentary form (Article 772 of the Civil Code) is also discussed. Moreover, the problem of admissibility of using smart contracts in relation to the so-called formal contracts has been described.
Chapter IV focuses on the issue of contract conclusion and incorporation of contract templates against the background of legal relations using smart contracts. It has been analysed whether such relationships remain in compliance with the restrictions on the freedom of contract (Article 3531 of the Civil Code). In this background, a particular doubt arises in the context of the so-called ”fundamental immutability” of smart contracts sensu stricto. The remainder of this chapter concerns the way of contract conclusion in the classic bidding procedure. Doubts arise as to whether a smart contract placed on a public blockchain should be qualified as an offer within the meaning of Article 66 § 1 of the Civil Code or an invitation to tender (Article 71 of the Civil Code). The answer to this question is not unequivocal, as many variables have to be assessed, such as the status of the contract parties (a contract concluded in the public, consumer or professional trade), or the way of the smart contract construction. At the same time, the period of the state of offer bindingness has been examined, as well as the rules of the place and time of concluding a contract with the use of a smart contract.
The next part of the chapter focuses on issues related to contract templates. This is a civil law institution that plays an important role from the perspective of smart contracts. The question was analysed whether a smart contract code may constitute a contract template within the meaning of Article 384 § 1 of the Civil Code, which takes an electronic form. In the context of prerequisites of template incorporation, the problem of the so-called “intellectual” possibility to get acquainted with the content of a contract template (program code), and thus the transparency issue of a template, should be pointed out. This problem is particularly acute in consumer trade. In this respect, the question arises whether it is possible at all to conclude an agreement using smart contracts.
Chapter V is devoted to the analysis of aspects connected with execution of an obligation using a smart contract. Smart contracts by their very nature are characterised by automaticity and, essentially, fundamental immutability. Its content is determined by the contract parties themselves. However, it is possible to distinguish a number of cases in which execution of program contents by a computer program will lead to the breach of an obligation. First, in the case of the lack of entitlement of a party to an object of the performance. Second, in the case of an error in the functioning of a program. Thirdly, in the case of entering incorrect data into a running smart contract. The issue of primary (Article 387 of the Civil Code) and subsequent impossibility of performance (Articles 475, 493, 495 of the Civil Code) has also been considered.
The paper addresses the issue of the qualification of “payment” with cryptocurrencies, in the execution of a smart contract, especially from the perspective of regulations on monetary obligations. If cryptocurrencies are not money under the civil law, but only a form of the so-called private currencies, then an obligation whose object is to provide an adequate amount of cryptocurrencies cannot be qualified as monetary. This fact excludes the application of codex regulations applicable directly to monetary obligations. However, this raises the question of admissibility of the analogy of relevant provisions regulating pecuniary benefits (Article 358 – the principle of currency, Article 3581 § 1 – the principle of nominalism and the exception in favour of valorisation, Article 359 – the interest on the sum of money, Article 481 – the interest for the time of delay, Article 454 § 1 of the Civil Code. – the place of execution of a monetary performance). The above determines also the qualification of contracts with elements of cryptocurrencies (e.g. sale in which the ‘price’ is based on cryptocurrencies will be qualified as exchange).
