Խելացի պայմանագրեր. արդյո՞ք դրանք կիրառելի են հոլանդական օրենսդրության համաձայն։

A smart contract is enforceable under Dutch law if it meets the ordinary requirements for a contract: an offer and an acceptance under Article 6:217 of the Dutch Civil Code (BW), an intention to be legally bound, and terms that are sufficiently certain. The code itself does not override mandatory law: a Dutch court still interprets the agreement and can set aside an outcome that is unacceptable by standards of reasonableness and fairness, and transactions that need a notarial deed cannot be done by code alone.

Dutch contract law is technology-neutral. There is no Dutch statute on smart contracts, so the general rules of Book 6 BW apply. This article explains how those rules work for code-based agreements, where the legal risks are, and how to set up a smart contract that holds in court.

Ի՞նչ է խելացի պայմանագիրը:

A smart contract is a computer program on a blockchain that carries out agreed steps automatically when set conditions are met. For example: once payment in a token arrives, ownership of a digital asset passes to the buyer, without an escrow agent.

The code usually runs on բլոկչեյն ցանցեր such as Ethereum. Once deployed, it is hard or impossible to change, it runs without human intervention, and on a public chain anyone can see the code and the transactions. Oracles feed outside data into the contract, such as exchange rates or delivery confirmations.

Legally, the code is a way to perform obligations, not a separate legal category. Under Article 6:217 BW, the question is whether the parties reached agreement and on which terms; how performance is automated comes second.

When is a smart contract a binding contract?

A smart contract binds the parties when there is an offer, a matching acceptance and an intention to be legally bound. Under Article 6:217 BW no particular form is required for most contracts, so an agreement expressed in code can qualify.

In practice, deploying the code with published terms can be an offer, and sending a transaction that triggers the code can be the acceptance. A court assesses intent objectively: what could the other party reasonably conclude from your statements and conduct? The parties must also have legal capacity, and the content must be lawful.

Which transactions cannot be done by code alone?

Some transactions require a notarial deed. The transfer of real estate requires a notarial deed and registration under Article 3:89 BW, and shares in a private limited company (BV) are transferred by a deed before a Dutch civil-law notary under Article 2:196 BW. A token that “represents” a house or BV shares does not transfer the asset itself.

Where the law only requires written form, Article 6:227a BW accepts an electronic contract if it can be consulted by the parties, its authenticity is sufficiently guaranteed, and the time of conclusion and the identity of the parties can be established with sufficient certainty. Pseudonymous wallet addresses make the identity requirement hard to meet.

Is a blockchain signature a valid electronic signature?

Usually a private-key signature is a simple electronic signature, not an advanced one. Under the eIDAS Regulation (Regulation (EU) No 910/2014), an advanced signature must be uniquely linked to and identify the signatory, and a wallet address identifies a key, not a person.

That is less of a problem than it sounds. Under Article 3:15a BW an electronic signature has the same effect as a handwritten one if the method was sufficiently reliable for its purpose and in the circumstances. The eIDAS Regulation also bars courts from refusing a signature legal effect only because it is electronic. See our article on թվային ստորագրություններ.

How does a Dutch court interpret a smart contract?

A Dutch court does not accept “code is law”. It applies the Haviltex standard of the Dutch Supreme Court (ECLI:NL:HR:1981:AG4158): what the parties could reasonably understand from each other’s statements and conduct in the circumstances.

The court looks at the code, but also at the website, white paper, chat messages and any written terms. If the code does something the parties did not agree, the agreement prevails over the execution, and the party that benefited may have to pay back what it received.

Can a court correct an outcome the code has already executed?

Yes. Under Article 6:248(2) BW a contractual rule does not apply where that would be unacceptable by standards of reasonableness and fairness, and under Article 6:258 BW a court can amend or dissolve a contract because of unforeseen circumstances.

A contract concluded under a mistake can be annulled under Article 6:228 BW, and money paid without legal basis can be reclaimed as undue payment under Article 6:203 BW. Automatic execution is therefore no defence: if the transaction cannot be reversed on the chain, the court can order repayment or damages instead.

A code vulnerability that drains funds does not by itself release either party from its obligations. Who bears the loss depends on the contract and on tort law (Article 6:162 BW), so allocate that risk expressly in writing.

Ո՞ր օրենքը և որ դատարանն է կիրառվում։

For cross-border contracts, the Rome I Regulation (Regulation (EC) No 593/2008) gives effect to the parties’ choice of law, subject to protective rules for consumers and to overriding mandatory rules. A choice of Dutch law in a business-to-business smart contract is normally respected, just as in any other contract.

Without a choice, a blockchain gives few connecting factors: the ledger runs on nodes in many countries, and the parties may only be known by wallet addresses. A Dutch court then looks at the usual factors, such as where the parties are established and where performance takes place. Serving a claim on an anonymous wallet holder is in practice often impossible.

Put the choice of law and forum in a natural-language agreement that refers to the code. Many businesses use a hybrid set-up: a written contract, the deployed code, and a clause that states which prevails in case of conflict. See also our article on իրավասության և կիրառման հարցեր.

Is arbitration a good option?

Arbitration lets you choose arbitrators with technical knowledge and keeps proceedings confidential. Under the New York Convention of 1958, arbitral awards can be recognised and enforced in most countries of the world.

An award still has to be enforced against assets, and pseudonymous holdings are hard to trace. Agree the arbitration clause in the written agreement, name the institute and the seat, and state the language of the proceedings.

Which regulatory rules apply?

A smart contract that only automates an ordinary commercial agreement does not fall under financial supervision. That changes once it holds crypto-assets for others, offers tokens to the public, or provides a crypto-asset service.

Under the Markets in Crypto-Assets Regulation (MiCA, Regulation (EU) 2023/1114), crypto-asset service providers in the Netherlands have needed a licence from the Dutch Authority for the Financial Markets (AFM) since 30 December 2024, or a licence passported from another EU supervisor. The earlier registration with De Nederlandsche Bank (DNB) is no longer enough, and the Dutch transitional period for registered firms has ended. Read more in our article on the MiCA Regulation.

Which consumer rules apply?

If you contract with consumers online, Article 6:230m BW requires you to give clear information before the consumer is bound, and code alone does not meet that duty. Under Article 6:230o BW a consumer may in most cases withdraw from a distance contract within 14 days.

Your system must therefore allow a refund or reversal, even on a network that is called immutable. Unfair terms in general terms and conditions can be annulled, whether they are written in a document or built into code.

How does the GDPR affect blockchain records?

The GDPR gives individuals a right to rectification and erasure of their personal data, while public blockchain records cannot be changed. The Dutch Data Protection Authority (Autoriteit Persoonsgegevens) supervises compliance.

Keep personal data off-chain, store only hashes or pseudonymised references on the chain, and decide in advance who acts as controller. In a decentralised network that question is difficult, but it does not remove your own responsibility. See our article on GDPR-ի պահանջները.

What should you check as the party deploying the smart contract?

• A written agreement that describes what the code does and states which prevails in case of conflict.
• A choice of Dutch law and a court or arbitration clause in that written agreement.
• An independent code audit before deployment, with a record of the findings.
• Clear risk allocation for bugs, hacks and oracle failures.
• Whether the activity requires a MiCA licence from the AFM.
• For consumers: pre-contractual information and a working 14-day withdrawal mechanism.

What should you check as the counterparty?

• Who the deploying party is, its legal name and its KVK registration or foreign equivalent.
• Whether written terms exist and match what the code actually does.
• Whether there is a way to stop, pause or correct the contract, and who controls it.
• Which law and which court or arbitration institute apply to disputes.
• Whether the provider holds the required licence if it handles your crypto-assets.

What can we do for you with smart contracts?

մեր ՏՏ իրավաբաններ advise businesses on the legal side of blockchain-based agreements.

• We draft the written agreement that sits next to your code, including choice of law and dispute resolution.
• We review whether your token or service falls under MiCA and needs an AFM licence.
• We check consumer information, withdrawal rights and general terms for consumer-facing applications.
• We assess the GDPR set-up of your blockchain application.
• We assist in disputes about faulty execution, including claims for repayment or damages.

Ամփոփում

• A smart contract is enforceable if there is offer, acceptance and intent to be bound (Article 6:217 BW).
• Courts interpret the agreement by the Haviltex standard, not only by what the code executes.
• Reasonableness and fairness (Article 6:248 BW), mistake and undue payment can correct an executed outcome.
• Real estate and BV shares still need a notarial deed; code cannot replace it.
• Crypto-asset services need a MiCA licence from the AFM, and consumer and GDPR rules apply in full.

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