In the last few days, we published a few quick primers on English & American contract formation law.
Contract Formation Under US Law
The rules of contract (“K”) formation in the US are relatively straightforward. Here’s what you need to know:
In the process of doing that exercise, we put together a quick and easy (therefore, necessarily incomplete) chart on the rules of contract formation in other jurisdictions.
Here it is in case it might be useful to someone.
Here is a link to the document (in case you want to adapt it).
Methodologically, this chart builds on the pioneering work of the so-called “Cornell Project” on comparative law in the 1960s, headed by eminent comparativist Rudolf Schelsinger.
Schlesinger and his collaborators believed there was a great deal of convergence in how different legal systems dealt with functionally equivalent problems. When they set out to study this, they made a deliberate choice to start with different states’ laws concerning contract formation.
There are many reasons why Schlesinger & Co. started with contract formation rules.
- First, this was a topic with a high likelihood of producing interesting areas of convergence.
- Second, understanding the patterns of harmonization in global contract law would have immediate relevance for global commercial and global governance stakeholders.
- Third, contract formation presented a relatively discrete problem set (how do jurisdictions X, Y, Z enforce promises between A & B?). Studying contracts would be easier than studying other areas of law that were potentially much more culturally-contingent, such as, say, family law, or the law of property.
After years of developing their research methodology, sending out questionnaires, waiting for responses, and compiling results, the authors produced a rich two-volume analysis on the Common Core of Contract Formation (1968).
Here are some screenshots that demonstrate the payoff of this type of multi-jurisdictional analysis. See eg ICJ Statute, Article 38(1)(c).
Schlesinger & Co. might have been puzzled by the far-right column in the table above, containing “Smart Contracts” ~ Ks.
But after running those forms through several streams of functionalist analysis, they would have likely concluded — like the UK Jurisdiction Taskforce — that SCs may be Ks. This may seem like an utterly boring and technical legalistic point, but it actually goes to the heart of whether blockchain parties can opt-out of different legal orders — and, specifically, how.
The Myth of ‘Self-Enforcing’ Contracts
By this point, it should be clear that the notion of “self-enforcing contracts” is an oxymoron.
There are many more valuable takeaways from Schlesinger’s work for blockchain contract builders and theorists today.
Here’s a point written 50 years ago that is especially relevant today:
It follows that in the area of formation of contracts the legal rules embodied in diverse legal systems are much less likely to be displaced by the parties’ autonomous arrangements than in other areas of contract law. Thus, it is submitted, the practical significance of those rules and the need for their comparative study are particularly great in this area. (p. 20, emphasis added)
Would you like to build on this type of work so that we gain a much more rigorous functional understanding of how contract law works all around the world — not just in so-called ‘leading’ jurisdictions?
Are you a blockchain/crypto law person working outside of the US/English/common law tradition? Do you sometimes feel that ‘common lawyers’ are subconsciously transplanting the ‘common law of contract’ onto the rest of the world? Do you fear that ‘smart contracts’ may operate like Trojan Horses, delivering their common law payloads to the rest of the rest of the world through the age-old strategies of disinformation and divide-and-conquer?
If so, welcome to Crypto Law Review! We’d love to hear from you. Because it’s only together that we’ll be be able to answer the pesky questions like, say, whether Ethereum is ‘legal’ in ‘China’ — ?