پژوهشنامه حقوق تطبیقی (Oct 2022)
A comparative study of the legal requirements for designing digital smart contracts In Iranian and French law
Abstract
In the last decade, the combination of blockchain, distributed ledger technology, and digital contracts has led to the invention of the modern form of smart contracts. In fact, smart contract is a self-executing computer software. Resolving the problem of breaches of obligations-especially among anonymous interlocutors in the international arena-, reducing the need to physically go to the court, eliminating major human interventions in the ratification and implementation of the provisions of the contract are some of the achievements of this initiative. One question which is raised is that in addition to the basic conditions of contracts mentioned in Article 190 of the Civil Code, ‘what legal rules are required in the design of such contracts, especially to protect the public non-legal entities?’ The present study was done by descriptive-analytical method to investigate the recent developments of French civil law in order to regulate special provisions of electronic contracts in compliance with Iranian law. Findings show that due to the inconsistency of the nature of smart contracts with current electronic legal contracts, some important legal rules such as good behavior and commitment of the parties to the full knowledge of the provisions of the contract may be violated in such contracts. In addition, there is a possibility of violation of personal or mental criteria governing the correctness of transactions, such as consent to conclude a contract in the electronic agency. As a result, using the jurisprudential rule of Estimar, the maximum authority of the electronic representative is to provide advice in concluding a contract, and the will of individuals cannot be considered as defeated by predetermined computer algorithms. Therefore, the proposed solution in order to express the full will of parties is to use smart combined contracts (code and text).
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