Stationing Smart Contract as a ‘Contract’: A Case for Interpretative Reform of the Indian Contract Act, 1872

Stationing Smart Contract as a ‘Contract’: A Case for Interpretative Reform of the Indian Contract Act, 1872

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Volume 13 Issue 4 ()

Smart contracts have garnered indubitable popularity as a disruptive technology that provides an effective digital alternative to traditional contracts. Summed up pithily as ‘automated digital contracts’, smart contracts gain significant ground in terms of efficiency and transparency over their traditional counterparts, and are increasingly moving into the mainstream in several jurisdictions. The benefits of smart contracts by no means exclude India – various domestic and international forums have acknowledged that employing smart contracts could transform contract enforcement and harness economic growth in the country. In this backdrop, it is imperative to ascertain precisely where the Indian Contract Act, 1872 positions smart contracts. Placing smart contracts into the unchartered waters of autonomous and anonymous digital contracting in India entails testing them for contractual validity as provided under the Indian Contract Act. Several concerns crop up during this exercise, particularly in the context of a rigid procedural framework under the law. In this article, we rebut the argument of ‘self-regulation’ frequently mooted as the best regulatory response to smart contracts. We favour an approach that harmonises smart contracts within the Indian Contract Act through a liberal interpretation of substantive contractual law, in line with the flexibility offered by common law. We illustrate that a smart contract is constituted of the same building blocks as that of a traditional contract under common law, and subsequently refine our analysis in the context of Indian laws and attendant precedent. This interpretation is strengthened through reference to similar approaches adopted in foreign jurisdictions. Notwithstanding the need for reform across a broad spectrum of statutes, we argue that a law catering specifically to the legitimisation and regulation of smart contracts is not necessary. The article concludes by suggesting remedies to the potential challenges that arise from our approach.

Cite as: Deepti Pandey & Harishankar Raghunath, Stationing Smart Contract as a ‘Contract’: A Case for Interpretative Reform of the Indian Contract Act, 1872, 13 NUJS L. Rev. 731 (2020)