Technological contracts

Primarily, the interactions among technology, contracts and contract law are briefly clarified; they will remain problematic nonetheless, but it is necessary to agree on some basic assumptions before moving to the legal discourse. Secondarily, a comparative overview of sources of law will be provided, discussing the different approaches that states and international institutions have followed in regulating electronic contracting with a view to promoting cross-border transactions. Needless to say, electronic contracting and commerce are primarily subject to the laws created by the same players of the market; state regulations follow. A specific paragraph will deal with the impact that technology has had on formation of contracts and on the mechanism of offer and acceptance in the main legal systems, from traditional approaches of contract law about exchange of consent to modern techniques where a contract is formed even though the element of consent has lost its centrality and is replaced by formalities or simply presumed. A further paragraph will address what is probably the most innovative aspect of modern digital economies, where technology is no longer a mere tool to perfect transactions, but it becomes the subject matter of the agreement. Such evolution in the landscape of contract law proves problematic, since technology as property can avoid state regulation and can impose one party’s will over the other. This is probably one aspect that makes scholars doubt the ability of traditional contract law to adapt to the changing technological scenario and justifies the call for specific regulations. The last paragraph concludes by envisioning a possible evolution in the relationship between technology and contract law and provides some critical remarks regarding overly invasive regulatory approaches which some legal systems seem eager to take with respect to electronic contracting.