(In)validade dos smart contracts

Abstract

Smart Contracts are fully digital contracts for the entire duration of the contractual relationship, from the contractual proposal to its execution. The particularities of this - exclusively electronic nature, implementation through software and hardware on the Blockchain network, programming language and conditional nature, self-enforcement - call into question its definition as contracts in the light of the Portuguese legal order. Therefore, it is essential to answer the question: "Are Smart Contracts real contracts?". In our point of view, the answer is affirmative. To this end, the grounding uses analogous figures and a comparative analysis between smart and traditional contracts, as well as the verification of the formal requirements of the general regime of contracts and fulfillment of the fundamental principles of Contract Law. As a corollary of the above, another question emerges: “Are Smart Contracts valid in Portugal?”. However, the answer at this moment is negative because there is no legislation in force on this matter. Nevertheless, given the importance of the subject, we believe and hope that in the near future, it will be regulated. While it is not, we provide diplomas in force that are consistent with the digital nature of Smart Contracts, in order to encourage legislative initiative and resolve the formal validity.

Date of Award	5 Jul 2022
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Daniela Baptista (Supervisor)