Abstract
The ultimate development of a disruptive and innovative contractual form has been imposing new challenges and the need of a proper regulatory framework in the legal field. Smart contracts consist on an internet protocol in which programming language and digital codes are used to input clauses that had already been agreed by the parties and that, upon the fulfillment of a determined condition previously established, shall be automatically self-executed. This new way of creating, transferring and extinguishing patrimonial rights and duties has been playing a major role in the context of the Creative Economy, in which intellectual capital, agility and the automatization of operations constitute fundamental factors. In order to investigate the characteristics and possibilities of adopting smart contracts under the perspective of the Brazilian legal order and its insertion in the Creative Economy, this paper has applied the theoretical and methodological framework of the Economic Analysis of Law so as to pursue the analytical exercise that it is committed to perform.
Highlights
The comprehensive vision entailed by the methodological adoption of the Economic Analysis of Law allows the operation of an analytical exercise that extracts conclusions that are more reliable to its research object, since, according to Mello (2006), if legal experts lack the necessary attention to the real effects of normative systems, economists lack the understanding of the internal logic of legal relationships
With the purpose of addressing the objectives that it is committed to analyzing, this paper has been organized as follows: Section II traces the general characteristics of smart contracts, dealing with questions referring to their nature and legal validity; Section III performs a mapping of the general rules that govern obligations and contracts under the Brazilian Civil Code and that may fall upon smart contracts, indicating relevant points for their regulation as well; in Section IV, the aim is to evaluate how smart contracts can reduce transaction costs; Section V addresses the insertion of smart contracts into the Creative Economy and, in Section VI, some finals remarks are made in light of the content that shall be exposed along this work
According to the data published at Ethereum’s website, 13.7% of users deploy the platform for commercial purposes, while 6.2% are destined to financial operations, 11.2% refer to exchange operations and the other usage profiles are divided into categories that are mostly associated with the Creative Economy
Summary
Post-Modernity and its consequences is, as a matter of consequence and vocation, the framework in which an ever increasing and capillary technological mediation of the social life has been taking place. The comprehensive vision entailed by the methodological adoption of the Economic Analysis of Law allows the operation of an analytical exercise that extracts conclusions that are more reliable to its research object, since, according to Mello (2006), if legal experts lack the necessary attention to the real effects of normative systems, economists lack the understanding of the internal logic of legal relationships In countries such as Brazil, in which the legal system is rooted in the Civil Law tradition, the prevailing formalist legal culture associates Law to a rational construction of norms by an idealized legislator, resulting, as stated by Kirat & Saverin, in a legal science without society along with social sciences without Law, what leads to the false idea that Law is a closed normative system and that social regulation is based on reasons other than the legal ones. With the purpose of addressing the objectives that it is committed to analyzing, this paper has been organized as follows: Section II traces the general characteristics of smart contracts, dealing with questions referring to their nature and legal validity; Section III performs a mapping of the general rules that govern obligations and contracts under the Brazilian Civil Code and that may fall upon smart contracts, indicating relevant points for their regulation as well; in Section IV, the aim is to evaluate how smart contracts can reduce transaction costs; Section V addresses the insertion of smart contracts into the Creative Economy and, in Section VI, some finals remarks are made in light of the content that shall be exposed along this work
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