Contracts in Code?

(2021) 13.2 Law, Innovation & Technology

The Chinese University of Hong Kong Faculty of Law Research Paper No. 2021-52

23 Pages Posted: 31 Aug 2021 Last revised: 7 Sep 2021

See all articles by Dr Eliza Mik

Dr Eliza Mik

The Chinese University of Hong Kong (CUHK) - Faculty of Law; TILT; Melbourne Law School

Date Written: August 30, 2021

Abstract

A contract written in natural language describes the parties’ rights and obligations. It cannot, however, “do” anything. It produces legal not physical effects. Traditional contracts do not instruct computers to perform any operations. Contracts expressed in code could. The question arises: can we convert contractual documents from being passive embodiments evidencing agreements into active files containing computer instructions? While there are no doctrinal objections to the expression of contracts in code, there is myriad of complexities accompanying such expression. The ability to guarantee that contracts are performed as agreed, an idea underlying blockchain-based “smart contracts,” is predicated on the ability to express obligations in code or, more specifically, on the ability of code to express obligations exactly as agreed. The previous statement forms the core of an overdue debate. Not every obligation can be encoded, be it due to its very nature or to the limited expressiveness of programming languages. Highlighting the interplay between form and substance, this paper presents a high-level overview of the complexities involved in expressing contracts in code. Before contemplating the more technical (and exciting!) aspects of “smart contracts” we must confront some preliminary (speak: prosaic!) questions: what exactly are we trying to encode – and for what purpose? Can the entire contract be expressed in code? Should we focus on translating legal prose into code or on encoding specific tasks that serve to discharge obligations? Set in the present, not in the distant future of robo-lawyers powered by quantum computers, this paper provides the groundwork for more ambitious projects in this area.

Keywords: smart contracts, contract law, computational contracts

JEL Classification: K12, K22, K10

Suggested Citation

Mik, Eliza and Mik, Eliza, Contracts in Code? (August 30, 2021). (2021) 13.2 Law, Innovation & Technology , The Chinese University of Hong Kong Faculty of Law Research Paper No. 2021-52 , Available at SSRN: https://ssrn.com/abstract=3913783

Eliza Mik (Contact Author)

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

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Shatin, New Territories
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Hong Kong

TILT ( email )

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Melbourne Law School ( email )

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Melbourne, VIC 3010
Australia

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