Beyond considering the role of contract visualization, Stefania Passera’s doctoral dissertation Beyond the wall of contract text (2017) she also looks at the functions of contract.
Her conclusions are critical for contract creators like me who believe that the purpose of a contract is not merely to safeguard rights and ensure legal enforcement (see my manifesto).
Stefania acknowledges that ‘emerging technological advances such as blockchain, artificial intelligence, and automation are bound to profoundly change what contracts are in the coming years, and how they are created, managed, monitored, and even executed’.
You can read my views on whether the construction industry would benefit from smart contracts. Although, there are simpler technological improvements we need in construction contracts before we can even think about whether smart contracts solve a need, or are merely window-dressing an empty shop.
Stefania says (in chapter 5, her conclusions):
As contracts evolve to become machine-readable, there will be even greater need to ensure that they remain [or become] also human-readable
Contracts are currently written:
- by lawyers for lawyers ie as legal tools
- without any effort to communicate clearly and empathically with the reader
- in a cold, invariably formal and slightly threatening tone
- relying on legalese and document complexity to ‘create iron-clad contracts that minimize the risk of losing in court’
- using overly technical language
- set out in unformatted dense layouts.
What should we do?
As Stefania says, we cannot simply substitute legalese with code and shift contract ownership from lawyers to software engineers.
We need to ensure that smart contracts can be read, understood and used by humans throughout the contracting process from planning, creating to using it for project success.
We need to avoid ‘garbage-in, garbage-out’.