Dismantling Imaginaries about Smart Contracts

Smart contracts have received a global attention from legal scholars, such that some have highlighted and criticised this level of “hype” in legal circles and law practice. In its first part, the chapter discusses and dismantles three main imaginaries about smart contracts: the revival of private ordering though technological means, the rise of a sort of digital formalism in contract law and its pitfalls, especially with respect to weaker parties, and the challenge of perfect enforcement which, in theory, will set smart contracts aside from the state and its judicial power. In the second part, the chapter addresses the regulatory challenges posed by smart contracts and, particularly, discusses the need to introduce new provisions to address this technological innovation. In such a perspective, it provides a critical commentary on the Italian legal framework for smart contracts. Finally, the chapter concludes by discussing the desirability of smart contracts after having dismantled these imaginaries and having put forward a more realistic view of this phenomenon. A final comment is provided on the regulatory options, along with a criticism of the Italian approach to regulating blockchains.