On the Scales of Private Law: Nano Contracts

Abstract

Contracts are falling in scale. New contracting trends and technologies facilitate the formation of smaller scale contracts that have extremely short duration, stakes, and scope. These nano contracts embody ephemeral interactions of minuscule value—interactions that were so far outside the law and away from explicit markets, governed only by social norms.
The rise of nano contracts can unlock new transaction types, opportunities to build wealth, and reduce dependence on private ownership. Yet they also carry important risks, and their small scale makes them difficult to effectively regulate. At the limit, nano contracts collapse private law boundaries between property, torts, and contract, and would require a rethinking of the basic private law categories. This Article offers the first comprehensive study of these Lilliputian agreements, examining their potential while attending to questions of enforceability, market creep, and disparate impact. The analysis reveals the essential, if neglected, role of scale in private law, and how it can and should inform jurisprudence and policy.

Keywords: Contracts, Xaas, scale, private law theory, law & technology, AI, agents

JEL Classification: K12, 033, K11, J41, L86, K13, D23, 034