Creating markets in no-trust environments: The law and economics of smart contracts

Smart contracts, self-executing agreements based on blockchain technology, have the capacity to create trust in what we term no-trust contracting environments. We argue that using them in such environments is the path to unleash the full potential of smart contracts. Compared to the contract enforcement mechanisms characterized by traditional contract law or relational contracts, smart contracts can offer a superior solution for facilitating trade.Several lawyers and economists have debated whether smart contracts might offer the prospect of cheaper, faster and better transactions. As we discuss below, contract law scholars caution that they neither replicate the relational context essential for the day-to-day practice of contracting nor offer a superior solution to problems addressed by traditional contract law, such as contract validity and legality. We clarify and systematize the current thinking on the legal nature and reliability of smart contracts, and address the concerns of contract law scholars. While doing that, we suggest a step forward in characterizing contracting environments, contract enforcement mechanisms and the trust relationship underlying contracts.     

两岸关于旅游合同最新立法例的比较研究——以祖国大陆《旅游法》的制定为中心

以祖国大陆《旅游法》的制定与实施为标志,旅游合同于祖国大陆终于实现了规范化。而将其与1999年我国台湾地区"民法"新增有关旅游合同之法规则进行对比,可发现二者在总的立法体例、主要规制的内容上有很大的相似性,但在缔约双方一些具体权利义务的分配上仍有差异。如祖国大陆《旅游法》所规定的旅行社告知义务内容的明文化、因旅游者原因所产生合同解除权的列举式立法、旅游合同违约无过错责任原则的缓和、惩罚性损害赔偿的引入;我国台湾地区"民法"债编规定的旅行社对旅游者购物瑕疵之协助及处理义务。而这些细微的差别也为两岸旅游合同法的相互借鉴与改进预留了空间。     

金融衍生交易的法律解释——以合同为中心

金融衍生交易特别是场外衍生交易规则与传统民商法之间的冲突是大陆法系国家普遍存在的问题。衍生工具作为一种新的合同类型,与传统合同的显著区别在于"当前订约、未来履行",从中派生出特殊的履约风险、缔约风险等一系列新问题。对赌、显失公平等法律争议正是基于衍生合约本身的特性而产生;而通常被称为"衍生交易规则"的一整套制度实际上是市场自发创设的防范履约风险的安排。在此,场外衍生交易与场内衍生交易之间没有本质区别,英美法系与大陆法系需要应对同样的问题。通过还原衍生交易规则背后的法律逻辑,可以构筑一个以"合同"为中心的衍生交易法律问题的分析框架,容纳从合同效力、履行、缔约到信息披露、监管等一系列问题。以合同为主要处理对象的民商法应扩张自身的体系以容纳实践中产生的新合同类型,从而为整个金融衍生交易法律规则体系提供坚实的基础。     

The Legalization of Emotion: Managing Risk by Managing Feelings in Contracts for Surrogate Labor

Despite a rich literature in law and society embracing contracts as exchange relations, empirical work has yet to consider their emotional dimensions. I explore the previously unmapped case of surrogacy to address the interface of law and emotions in contracting. Using 115 semistructured interviews and content analyses of 30 surrogacy contracts, I explain why and how lawyers, with the help of matching agencies and counselors, tactically manage a variety of emotions in surrogates and intended parents before, during, and after the baby is born. I establish that a web of “feeling rules” concerning lifestyle, intimate contact, and future relationships are formalized in the contract, coupled with informal strategies like “triage,” to minimize attachment, conflicts, and risk amidst a highly unsettled and contested legal terrain. Feeling rules are shared and embraced by practitioners in an increasingly multijurisdictional field, thereby forging and legitimating new emotion cultures. Surrogacy offers a strategic site in which to investigate the legalization of emotion—a process that may be occurring throughout contemporary society in a variety of exchange relations.     

Institutionalizing Industry: The Changing Forms of Contract

A replication of Macaulay's 1963 study of Wisconsin manufacturers shows that manufacturers are using a new type of contract to govern changed transactions and to establish new form of industrial organization. This article seeks to specify these changes and to demonstrate their theoretical significance by constructing an empirically and theoretically informed analytical framework. This framework establishes relations of meaning between discrete contracts, job shop production, and classical contract law; between openterm contracts, mass production, and neoclassical contract law; and between long-term agreements, flexible production, and a "shadow" relational contract law. It demonstrates that long-term agreements constitute a new device for governing exchange, that they are part of a broader change from mass production to flexible production, and that their distinctive features are not recognized by neoclassical contract law.     

合同错误的比较法研究

错误是影响合同当事人意思表示真实性的核心要素,也是判定合同效力的重要条件。各国民法对合同错误概念的不同界定和处置规则,导致合同效力的确认和处理结果迥异。尽管存在错误的合同理应得到法律的适当救济,然而救济的后果并非取消所有因错误而签订的合同之效力。作为一项原则,单方错误的合同、表示方有过错的合同和一方自愿承担风险的合同,其效力均不应被否定,但这一原则的适用又受制于适当的条件。对于合同错误的处理规则,各国的法律规定与司法实践并不完全一致。     

Jurisdiction for Consumer Contracts: European Union: Modified Rules of Jurisdiction for Electronic Consumer Contracts

The Brussels Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters (the Brussels Convention) is to be replaced in 2002 by a Community Instrument: The Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Regulation).¹ The Regulation is an important measure approved by the European Union to simplify rules of jurisdiction and recognition of judgments for the benefit of the Internal Market. Amongst other matters, the Regulation updates existing jurisdiction rules for a consumer contracts. The rules for consumer contracts apply where a consumer and a business are domiciled in a Member State or the business has a:“branch, agency or other establishment” in a Member State. Importantly, the Regulation clarifies jurisdiction rules for consumer contracts conducted over the World Wide Web (WWW). These rules are to be welcomed, as they provide guidance on what rules of jurisdiction apply to consumer contracts over the Web, albeit that they are limited to where the parties are domiciled in Europe. This article outlines the rules of jurisdiction for consumer contracts provided by the Regulation, and where appropriate, highlights some aspects of the new rules that will possibly require further discussion and clarification by the European Court of Justice once the new rules are in force.     

电子商务合同中的若干法律问题

与传统的合同制度比较 ,电子商务合同有不同的特点 ,尤其是在合同的形式、成立及效力等方面。     

保险契约信息不对称的法律规制

投保人与保险人对风险信息占有的不对称会导致逆向选择、道德风险问题 ,因此需要法律制度激励真实信息披露 ,以实现契约最优。这主要包括立法规制和司法规制 :前者如说明义务、告知义务和通知义务、特别约定条款的拟定和解除权的行使等 ;后者如司法审判中不利解释原则的适用。     

Ex Ante and Ex Post Allocation of Risk of Illegality: Regulatory Sources of Contractual Failure and Issues of Corrective and Distributive Justice

The pursuit of welfare objectives through contract law rules could be exemplified in the case of illegality and subsequent nullity sanctions attached to a contract that violates certain regulatory rules. The effectiveness of contractual allocation of risk of illegality (regulatory prohibitions), therefore, varies, depending on which contract theory prevails. Maintaining the validity of a prohibited and failed contract, and allocation of the relevant risks, is crucially dependent on whether we adhere to a welfare or rights-based theory of contract. In this paper we argue that impossibility of ex ante and ex post allocation of risk of illegality is the logical outcome of the adherence to a welfare theory of contract law, as maintaining even a minimum validity of the failed contract would result in some welfare losses. According to this approach unjust enrichment could not be rectified because it would diminish the optimal enforcement of welfare objectives. On the other hand, and despite such prohibition and illegality, a rights-based theory would resist opportunistic and rent-seeking behaviour and would ensure the validity of the contract and just allocation of losses and gains, which arise from the failure of the prohibited contract.     

The idea of autonomy and the foundations of contractual liability

This paper examines a recurrent debate about the rationale of contractual liability: whether the central object of contract law is to facilitate human interaction by respecting individual choices, or if it is in large part to redistribute wealth, power, and advantages generally. The debate between defenders of freedom of contract and those who would use contract law to advance schemes of redistribution is connected to the long-standing issues between natural-law theories and legal positivism. This paper is divided into two main sections. In the first, the notion of individual autonomy is examined in light of the classical view, most recently advanced by Fried, that the rationale for enforcing contracts is connected to the respect for individual autonomy as such. There is also an examination of the notion of a collective concern, and what it is, from a libertarian point of view, that makes some social goals objectionably collective. The second part of the paper argues that the use of collective resources for the enforcement of contracts brings with it the authority to limit and shape enforcement in the interest of redistribution.     

Contract Law,Relational Contracts,and Reputational Networks in International Trade: An Empirical Investigation into Cross‐Border Contracts in the Software Industry

The following case study investigates the contract enforcement institutions that enable German customers to purchase software in Asia and Eastern Europe. The case study shows that nation‐states are hardly able to generate a legal “shadow” for cross‐border business relations. The same holds true for the so‐called New Lex Mercatoria. Instead, economic actors create their own informal mechanisms. Relational contracts and reputational networks are nowadays far more effective due to developments in the field of information and communication technology. Overall, the importance of formal contract law in international trade is even smaller than is assumed by the classic theory of relational contracts.     

社会自治规则探讨——兼论社会自治规则与国家法律的关系

社会自治规则是社会自治组织行使社会公权力,规定自治事项,规范成员行为的重要载体和集中体现,并直接决定了社会自治秩序的建构。其可分为授权性规则和自主性规则,其中前者是法律的延伸,具有法的属性;而后者更接近公法契约,不属于法的范畴。其调整范围主要是专业类、行业类和利益类事项,不能涉及法律保留事项。就效力而言,自主性规则具有契约性和自律性,但不具有法律的强制力,只有在法院确认其合法有效后,才能强制执行。社会自治规则与国家法律之间既有互动的一面,也有监督保障的一面,只有二者有机结合,才能有效建构理性的国家和社会秩序。     

论智能合约的私法构造

智能合约是一种通过区块链才能实现的新技术,在技术上是一种可编程的代码程序,在法律上是一种特殊的身份合同。其藉由特定当事人之间形成的共识机制,实现了对当事人身份的识别,促成了智能合约难以逆转的自动执行,并在事实上排除了当事人的合同撤销权,成为跨越合同订立、合同履行两个领域的新型交易机制。智能合约对传统合同法理论带来了巨大冲击和挑战,却不足以支撑"技术自治"或"代码即法律"等学术主张,也不足以否定实定法对智能合约的正当干预。在现行合同法框架下,仍然存在对智能合约及交易作出妥当解释的空间。除此以外,在智能合约的私法构造中,应当引入团体法思想,认可社团主义的自治机能,构建以"信赖保护"为核心的救济机制,实现法律与技术的同步发展。     

Inequality,Just Price and Bad Bargains: Contracting Attitudes after the South Sea Crash, 1720

ABSTRACT

In 1720, following the crash in South Sea stock, some doubted the legal and ethical enforceability of contracts concluded on the secondary market for the purchase of future South Sea stock. This article examines the argument of David Dalrymple who drew upon civil law, natural law and the notion of a just price to advocate for the annulment of these so called ‘time bargains’. It demonstrates why Dalrymple's just price argument held a rhetorical relevance, as an ethical argument, even if the effectiveness of such a plea in both Scottish and English courts, during the early eighteenth century, is doubtful. Additionally, in setting out the context of his pamphlet and the wider debate, this article also draws attention to the emergence of a new ethical rhetoric of commerce and contracting, which argued against Dalrymple, and for the enforcement of these contracts. Lastly, this article contends that a wider conception of what constitutes the legal context of the South Sea crisis is needed, through which a deeper understanding can be gained of what role the law played in resolving the crisis and how political and ethical attitudes shaped the use of law, specifically contract law.     

民事合同与商事合同之辨

民事合同与商事合同在当事人认定、交易结构的繁简、"名""实"相副与否、"穿透"合同关系的允许与禁止、合同瑕疵的容忍抑或矫正、商业逻辑的地位及作用、坚守"正位"抑或"错位"处理"火候"把握等方面存在差异.认识、重视和研讨之,目的 和意义之一是,在法律适用时必须顾及商事合同的特殊性,不得僵硬地套用关于民事合同的规定.目的 ...     

Supply chains,contractual governance and certification regimes

Contractual governance of the food supply chain is on the rise. In this paper we focus on a particular set of instruments for transnational governance of food supply chains: transnational contracts and agreements. Looking at transnational contracts as instruments for implementation of transnational private regulation, we compare different mechanisms for the enforcement of safety and sustainability standards in global food supply chains. We conclude that the regime of contractual remedies follows different logics from the ones of regulatory and certification regime. (1) The former aims at redressing the victim of the breach inducing compliance through a re-active approach; whereas the latter pro-actively tries to restore compliance with regulatory process in order to pursue regulatory objectives. (2) The former focuses mainly on products, the latter on process. (3) The former concentrates on individual transactions while the latter focuses on the interdependence of contractual relationships along the chain and creates collective governance mechanisms. This paper suggests that the combination of the two sets of remedies may reinforce coordination and cooperation along the chain, therefore improving the level of quality, safety or sustainability of certified production. A higher level of awareness about the impact of standards and certification on the contract rules on remedies can have other positive consequences: it may improve contract drafting, leading the parties to coordinate different remedial systems when addressing the consequences of the breach and the ones of certification remedies; it may help courts to better define the scope and preconditions of contractual remedies and their effects on transnational regulation; it may guide law makers and standard setting institutions, when providing principles, rules or guidance concerning the consequences of the breach within contracts and along the chain, particularly in the food sector. From this perspective, the current work conducted by Unidroit and Fao for the production of a Legal Guide on contract farming could represent an important opportunity to define the links between multiple remedial regimes in food chains.     

Preserving the Copyright Balance: Statutory and Constitutional Preemption of Contract-Based Claims

Some copyright owners in the digital age have turned from copyright to contract law to protect their intellectual property, employing licensing agreements that override fair use and other public interest safeguards. State laws or common law claims that conflict with general copyright policy may be preempted through application of Section 301 of the Copyright Act or through general Supremacy Clause preemption. This article examines the role of preemption in protecting the public interest against attempts to circumvent the copyright law through such means. After examining the relationship between copyright and contract law, the article reviews the case law regarding statutory preemption and Supremacy Clause preemption of contract-based claims. It concludes that application of Section 301 preemption is not sufficient to protect longstanding principles in copyright law that are at risk from the increased use of contracts to displace default copyright rules. The article calls for the courts to return to Supremacy Clause preemption to prevent the degradation of important public interest safeguards in the copyright law.     

论私法合同中意志的物化性——一个被我国立法、学理与司法忽视的决定合同生效的因素

具有行为能力的当事人基于意思表示一致所订立的合同是否当然具有法律效力 ?这一问题被我国的学理、立法和司法实践忽视了。我们的概念常常是 :意思表示真实是合同的核心问题。但实际上 ,没有任何一个国家的制度认为纯粹的意志可以决定一切 ,合同的交易本质不容忽视。大陆法系许多国家的原因理论与普通法系国家的约因理论都是决定合同义务是否可以履行的重要条件。     

我国给付不能制度体系之考察

我国给付障碍统一构成要件规则来自于德国"不履行"理论,但合同法并未统一法律效果,也未根据法律效果结构请求权基础,履行不能的制度功能并未因为统一构成要件而消失.在履行不能制度功能上,由于免责事由规定过窄,出现了债权人与债务人利益失衡的情形,而且没有规定对待给付当然消灭规则.在履行不能类型上,没有规定自始不能、部分不能、暂时不能、人身不能等规则,对此需要通过理论继受加以补充,在法律上还要明确经济上不能与情势变更之间的关系.在履行不能与瑕疵担保规则、风险负担规则竞合的情况下,应优先适用瑕疵担保规则、风险负担规则.