Smart contracts e Direito no Brasil: desafios e aspectos jurídicos

Abstract

This study analyzes the legal landscape of smart contracts in the context of Brazilian law. The starting point for this analysis is article 425 of the Civil Code, which allows parties to stipulate atypical contracts, provided that the general norms of the code are observed. From this basis, the question arises whether smart contracts can be considered a category of atypical contract, subject to the validity requirements stipulated in article 104 of the Civil Code: capable agent, lawful, possible, determined or determinable object, and prescribed form or not forbidden by law. However, this simple reference to contracts in the Civil Code proves insufficient to deal with the intrinsic complexity of smart contracts, notably their characteristic of immutability. Although still rarely used in Brazil, the issue of the legality of these contracts and the need for regulation in the Civil Code are relevant topics. In response to this legal gap, in 2022, bill 954/2022 was introduced in the Chamber of Deputies, aiming to initiate the regulatory process regarding these institutions. This study concludes that smart contracts represent a new institution in global contract law, bringing benefits and challenging the current Brazilian legal system. Therefore, it is crucial to question how to properly apply and regulate smart contracts in contractual relations, in accordance with national legislation, as this technology continues to evolve and be adopted in the country's legal landscape.