The indispensable elements of a contract and the emergence of smart contracts : a comparative analysis

Abstract

This Dissertation is primarily focused on providing a detailed analysis into the elements of Capacity and Consent, discussed respectively in Chapter 2 and 3, as indispensible elements for the formation of a contract under Maltese Law, which is greatly influenced by the Continental/Civil Law Tradition. The respective vices of Capacity; minors, insane, interdicted and incapacitated person as well as the vices of Consent; errorviolence and Fraud under Maltese Law will also be discussed in detail with reference to local case law. The elements of Capacity and Consent or their corresponding counter parts will then be analysed from an English Common Law perspective, thus enabling a comparative analysis to be drawn up between said jurisdictions. Here too will reference be made to English jurisprudence. The analysis conducted sheds light as to the considerable similarities with respect to the elements of Capacity and Consent in Civil Law and Common Law Jurisdiction, while also identifying areas of divulgence. In the last chapter, this being Chapter 4, Smart Contracts are explained. The focal point of this Chapter is the understanding of what constitutes a Smart Contract while also observing how it differs from Natural Contracts as well as reviewing the elements of Capacity and Consent in the context of Smart Contracts.