The recent interest developed around the phenomenon of the so-called smart contracts, did not fail to highlight how in the face of the great potential offered by this newly-developed tools there is indeed a great confusion about the nature of the same. In fact, we ask ourselves if smart contracts are real contracts or if they represent nothing else than a new and efficient way of implementing, almost automatically, clauses contained in an already existing agreement. It is indeed an open debate that involves considerations having IT, but also, and above all, juridical nature.

And yet, while the debate still seems far from settling on a generally shared position on the nature of smart contracts, such tools have already known some embryonic application and their general use seems increasingly close. In this view, a further issue of discussion seems to entail the professional skills required in the setting up of a smart contract.

On the one hand, as the term "contract" suggests, it is something strongly linked to the legal world. On the other hand, the preparation of a smart contract necessarily requires IT skills. If legal professionals, often set on an even too traditional conception of their role, seem to struggle to familiarize themselves with technology, it cannot be said that the generality of computer scientists has a sufficiently thorough knowledge of law to induce someone of entrusting them with the drafting of a contract.

Meanwhile, beyond our borders, some business law firms have been preparing to offer their associates coding courses in an attempt to fill the gap between professions and bring lawyers closer to a different language which is difficult for them to understand. These are certainly noteworthy initiatives, but whose intent, however ambitious, is certainly not to create a new hybrid of professional who positions himself in the middle ground between law and computer science. A sort of "smart lawyer" to be clear, whose advent must certainly be considered a much more futuristic circumstance of the smart contracts themselves.

On the other hand, it is far more reasonable to believe that legal and IT professionals will soon find themselves working together, participating, therefore, at the drafting of smart contracts. In this sense, the above-mentioned initiatives should therefore be considered a first attempt at familiarization between two areas of work that are distant, but with smart contracts advent will soon be forced to establish a dialogue.

This unexpected professional liaison, however, does not fail to raise doubts about the responsibilities, or rather the limits of the responsibilities of the professionals involved. More precisely, in order to establish the limits of the respective responsibilities, on the one hand, we need to assess how the relationship between the two types of professionals involved can be structured, and on the other hand, to determine the nature of the related professional responsibilities.

As for the first profile, at the moment there is substantial uncertainty about the structuring of the relationship. Notwithstanding the fact that it is quite clear that lawyers or, in any case, the legal professionals, cannot, in reason of the specificity of their skills, certify the identity of the code transcribed by the IT professional within the smart contract to the agreement concluded between the parties, it is more than reasonable to assume that the lawyers’ role will be limited to providing assistance activity to the coder who is in charge of drafting the code. This activity should therefore be based on the explanation of the contractual dynamics and of the meaning of the clauses agreed between the parties, thus allowing the coder’s gaining of the necessary understanding, allowing the agreement translation into the code.

It should also be considered that, given the great limitations to which, due to the limited language of computer codes, the instrument of smart contract is necessarily subjected, the area in which it is most likely to operate seems to be necessarily the one of standardized contracts. Therefore, it is reasonable to believe that the meeting between the two above-mentioned professionals can be unique even in the face of operations hinged on a multitude of contracts.

As for the second profile, it is instead necessary to make a distinction. On the one hand, the lawyer's one is an intellectual profession (articles 2229 - 2238 c.c.) whose services refer to obligations of means and not of result. In other words, for such professionals, the required expertise is that which complies with the technical knowledge of reference for the profession (article 1176, paragraph 2, c.c.). Where the performance of obligations involves particular complexity issues, professional’s liability is limited willful misconduct or gross negligence. Instead, as long as computer scientists are involved and, as in this case, coders, the situation is definitely more uncertain.

In fact, relationships between clients and IT professionals can have their source in agreements of different nature (e.g., a contract or a mixed agreement for the license for use and performance of works). As it results from a relatively recent judgment of the Court of Milan (Court of Milan, Section specialized in the field of enterprises, 22 May 2017, No. 5752), regardless of the legal classification of the relationship as performed by the parties, it is necessary to determine if in the case specific, the services for which the programmer in favor of the party or parties is obliged to provide a means or result obligation.

Well, in the case of the smart contracts, it is clear that the desire of the parties can only be identified with the exact and effective transposition into code, of the contract concluded between them, so as to prepare a smart contract that is capable of performing correctly and automatically all clauses contained thereof. As a consequence, any difference with the parties agreed regulation, or smart contract malfunction, will fall within the liabilities of the programmer who will therefore be forced to guarantee the result of his work.