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The Resilience of Contract Law in Light of Technological Change

The principles of contract law have shown continued resilience in light of constant technological developments, including the mainstream adoption of the Internet. This resilience may be attributable to the broad manner of their formulation. While the Internet hardly creates academic excitement anymore, a number of internet-related technologies may pose a challenge to the principles of contract law and may test their flexibility. Purportedly, block-chain-based smart contracts, popularly defined as the encoding of legal terms in self-executing computer code, enable not only the automation of performance but also the delegation of enforcement to immutable code. Once performance and enforcement are entrusted to impartial machines, breach becomes impossible. Are such “operations” desirable or legally permissible? The challenges of automation are further aggravated by advancements in artificial intelligence. Technological phenomena like algorithmic trading or autonomous agents may affect the existence of intention and raise problems concerning the validity and enforce-ability of any resulting contract. Additional difficulties concern ubiquitous computing, loosely defined as the user-facing technologies involving the Internet-of-Things (“IoT”). The latter blurs the division between online and offline environments and force a revision of our understanding of “online contracting.” It becomes difficult to rely on such basic principles as the objective theory of contract or on the presumption that in commercial contexts the parties intend to be legally bound. The point is not to question the continued applicability of such principles or presumptions but to illustrate the difficulty in their application.