Shall attorneys be involved in drafting parts of the smart contract and if yes, which parts?
Select jurisdiction
Germany
Lawyers should always be involved in the drafting of smart contracts.
Because a smart contract is not a contract. It only represents one. The content of this
contract is a classic task for a lawyer. There are still many unresolved issues, especially in
German law. For example, a smart contract – since it can be used many times and also
otherwise contains all the components of GTCs – can be seen as such. Accordingly, it must
also be assessed on the basis of §§ 307 et seq. of the German Civil Code. BGB, which is the
task of a lawyer.
Italy
With reference to the general discipline of legal contracts, Italian legislation does not identify the subjects entitled to draft a contract. Everyone is indeed entitled to draft and enter into a contract, except where the law
provides otherwise. Having said that, it is important to note that smart contracts are created through a programming language, characterised by alphanumeric elements, which means that whoever creates a smart contract must understand that specific language. This, indeed, can be considered the only limitation imposed on attorneys who want to draft a smart contract. In such cases, attorneys would need to be assisted by technical experts who know how to transform the natural language into codes.
India
Yes, It’s always good to involve an attorney while drafting a smart contract considering the nitty gritty of law and regulations. Since the execution of the smart contract can result in the exchange of payment, access to premium content, delivery of services, enforcement of privacy protection and it acts as a legal framework for governing the
transaction and determines the rights and liabilities of parties.
The parts can include :
1. Agreement/ Pre-defined contract,
2. Compliance, and
3. Enforcement of Awards/ conditions.
Turkey
Smart contracts are not legally binding per se. However, they may contain the formal requirements of legal contracts under Turkish law, and they vest parties with legal rights and obligations. Within this context, a smart contract may be perceived and treated as a legally enforceable contract despite its technological nature. Thereby, lawyers should get involved to mitigate potential risks during negotiation and drafting contractual clauses related to parties’ rights and obligations as well as dispute resolution clauses.
Brazil
We see with good eyes the involvement of attorneys in drafting parts of smart
contracts, since attorneys are generally trained to write contracts. Thus, lawyers should be
involved in the whole process in order for a smart contract to be safer.
Poland
In order for a smart contract to become a legally binding contract, it is essential for the parties to include a lawyer in its drafting. A lawyer should be included especially at the point of negotiating particular obligations to be undertaken by the parties under the smart contract. The Polish law specifies that some contracts are to be necessarily concluded in a certain form, and therefore, for transfers of some rights and obligations, concluding merely a smart contract might not be enough.
