The autonomy inherent in AI systems brings legal challenges. The reason is that it is no longer possible to predict whether and how explanations and actions emanating from AI systems originate and whether they are attributable to the AI system or its operator. The core research is whether the operator of AI systems is contractually liable for the damage caused by its malfunctioning. Is contract law sufficiently prepared for the use of AI systems for contract performance? The answer is provided through a review of the common law, CISG and the German Civil Code (BGB).

It is difficult to come up with any events after World War II that have led our entire global society to recognise that before The Times They Are A‐Changin’1 as clearly as today’s global crisis has done. The COVID-19 pandemic and its aftermath have revealed that almost everything we once considered stable and sustainable is actually built on quite shaky ground. But the crisis has also brought out the best in our coexistence, seeing that societies in many countries have shown that they are capable of finding creative solutions to overcome the current challenges. Digital technologies have played a crucial role in the world’s response to the COVID-19 crisis. Just think of modern methods of telecommunication such as video conferencing, which have made an immense contribution to maintaining the economy and work processes, or the various corona tracking apps, which try to help stopping the spread of the virus. It can be assumed that the harmful consequences of the pandemic would have grown even greater if those digital solutions had not been available. Just as almost every area of life is affected by the pandemic, so are the law itself and legal practice.

This chapter examines in the first place the formation of (blockchain-based) smart contracts. The term “smart contract” is used to refer to software programs that are often (but not necessarily) built on blockchain technology as a set of promises, specified in digital form, including protocols within which the parties perform on these promises. It is regularly said that smart contracts are neither legal contracts in the traditional sense nor are they smart and that the term therefore is a misnomer. The crucial question this chapter is trying to answer is whether the traditional (Common Law) concept of contract formation is seriously challenged by the rise of smart contracts. So are smart contracts the end of contract formation as we know it, or is it at the end just much ado about nothing? And if contract law is in principle fit for the formation of smart contracts, do they have features which do challenge the traditional contract law, and if yes what are those features? These are some of the questions this contribution is trying to answer.

INCEPTION OF THE PRODUCT LIABILITY DIRECTIVE

HISTORICAL BACKGROUND

From a historical perspective, product liability was traditionally seen in many jurisdictions as merely a concrete illustration of the law of obligations to a specific factual matrix, involving the causing of damage by a product. It was only when the mass manufacture of consumer goods started to occur that sufficient impetus was generated towards the identification of an autonomous area of law. It was only then that practitioners and scholars commenced specialisation in the sphere of product liability. The US was of course at the vanguard of developments, and a word will thus be said of the evolution in the US, as a background to the European context. Professor David Owen records in his leading US treatise on the topic that the consequence of the spread of industrialisation in the 19th century was that by 1900, products ‘cases began to appear with some frequency’. There then followed iconic cases such as MacPherson v Buick Motor Co or Greenman v Yuba Power Products Inc, which ushered in the modern era of US products liability, accompanied by the various Restatements, with Owen noting that the strict liability rule enshrined in §402A of the Restatement (Second) of Torts resulted in the ‘the doctrine of strict products liability in tort, together with a miscellany of secondary principles spread like wildfire around the nation’.

The development of product liability in Europe as a distinctive area of the law occurred much later than in the US. It was not until relatively late in the 20th century, after the occurrence of mass product disasters in Europe, and the realisation that traditional responses of the law were inadequate to deal with such situations, that there was a movement towards products liability as raising distinct legal issues, for which a tailor-made regime for compensation was potentially required. It should be noted that comparative law played a role in this process in certain European jurisdictions, with Gerhard Wagner describing for instance how in Germany ‘product liability was imported from the US, both with regard to the legal problem and its solution’.