Smart Contract on a Crypto Assets in the Civil Law and Common Law Jurisdictions: Implementation of Best Practices

The article is devoted to the analysis on a crypto assets smart contract in the civil law and common law jurisdictions and the implementation of the best practices into Ukrainian law. It is argued that the essence of a crypto assets smart contract is that it is a self-executing contract which is represented and executed by a computer program, remains unchanged and unstoppable after the creation of this contract, and its terms are included in the internal functions of a decentralized database which is not controlled by the databases of the parties to the contract or third parties. It is noted that a cryptoasset smart contract, like any contract, may be declared invalid if the will to conclude it does not meet the conditions for the validity of this transaction, regardless of the form in which this transaction is concluded, as in this case in the form of a computer code. It is also stated that the terms of a cryptoasset smart contract must be specific (clear, unambiguous), feasible (objective), legitimate, and capable of automation (no evaluative terms, such as “reasonable time,” may be used), exist within the blockchain platform (on which cryptoassets are currently transacted) and not involve obtaining and confirming information from outside (in this regard, the terms of force majeure are not specified in the smart contract). The study applies dialectical, comparative legal, formal and logical, and systemic and structural methods of scientific knowledge. It is proved that a smart contract is a contract which is represented and executed by a computer program, the components of which are a computer code, some or all of the terms of this contract which are fulfilled upon the occurrence of predefined events, are stored in an electronic register system which records the result of execution of this program, and the contract itself cannot be changed and is executed in accordance with the programmed instructions of the computer program. The author concludes that the determination of the person who is legally liable when a smart contract fails to perform the programmed function depends on the terms of the smart contract, and in their absence, the provisions of applicable law regarding the legal consequences of non-performance of the contract and liability for such non-performance should be used.