Reconstructive ideas on the smart contracts, between technological innovation and legal rule

Abstract

In the last few years the development and diffusion of technologies have radically changed the structure of the market, the production organization and the ways in which goods and services are produced, initiating a profound transformation of the economic system and society in general. This change can be considered a real metamorphosis of the current model of capitalism.

To change are not only the rules of the market, which in its digital version requires the application of new rules and new principles capable of grasping their innovative character, but also the structures, the balances, the transactions that are carried out on the market and the instruments put in place to protect savers.

In this context the phenomenon of “smart contracts” takes on particular importance. This expression refers to agreements translated into computer code and registered by the network, which are executed automatically when the conditions established by the parties and reproduced in the code occur, without human intervention. Smart contracts are written in a programming language and, therefore, can be read by a computer and executed in the absence of a human input.

The diffusion of smart contracts is connected to the development of the blockchain which, as will be seen in this essay, is a technology based on a sophisticated public and private key cryptography system, which allows the creation of a shared database through a filing system secure, verifiable and permanent of all transactions between network users.

With this essay we intend to analyze the legal effects that smart contracts are producing within our legal system.

In fact, after examining the evolution of these contracts, we will try to highlight the new perspectives of digital bargaining, focusing above all on the unpublished scenarios that are proposed by the binomial smart contracts – blockchain.

Subsequently, we will try to highlight the relationship between this phenomenon and positive law, attempting to bring it closer to the civil categories of our legal system. A space will then be dedicated in particular to the concrete applications of such smart contracts in the banking and insurance system, underlining all the potential they have, but also their limits.

Finally, for greater completeness of the exposition, we will deal with some particular methods of committing crimes through the use of the network and the resolution of disputes related to smart contracts.