Document Type

Article

Publication Date

1-31-2020

Abstract

Deals accomplished through software persistently residing on computer networks—sometimes called smart contracts, but better termed transactional scripts—embody a potentially revolutionary contracting innovation. Ours is the first precise account in the legal literature of how such scripts are created, and when they produce errors of legal significance.

Scripts’ most celebrated use case is for transactions operating exclusively on public, permissionless, blockchains: such exchanges eliminate the need for trusted intermediaries and seem to permit parties to commit ex ante to automated performance. But public transactional scripts are costly both to develop and execute, with significant fees imposed for data storage. Worse, bugs practically can’t be eliminated. The result is that many scripts will terminate in misunderstanding, frustrated intent and failure.

When code misdelivers, disappointed parties will seek legal recourse. We argue that jurists should situate scripts within other legally operative statements and disclosures, or contract stacks. Precision about the relationship between script and stack sustains a novel framework, rooted in old doctrines of interpretation, parol evidence and equity, that will help jurists compile answers to the private law problems that digitized exchange entails.

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