Not sure what an honest Ponzi scheme is, but obviously not only would a contract for a Ponzi scheme be unenforceable, but Ponzi schemes are also criminal.
I'll give real world examples that go both ways:
1. Parking garage tickets: they include tiny little print saying the garage won't be liable for lost or stolen items from your car. Generally if your car is broken into those will be enforceable and the garage won't be liable.
2. Sky diving contract: include tiny little print that says if I die as a result of the companies negligence, they won't be liable and/or I waive my right to sue. Unenforceable, you can't waive negligence. (think about a skydiving school forgetting to pack a chute, someone dying, the family suing and losing, because of a defense that the deceased waived out negligence in the contract).
Lets look at a potential negligence claim against the creators of the DAO code.
1. By creating and soliciting investment for the DAO did its creators the investors a duty? If yes go on;
2. By creating code that allowed ~$40M of investors funds to be taken, was their a breach of that duty? if yes, go on
3. Did the substandard code result in damages to the investors? if yes go on
4. Can the investors prove monetary loss? if yes, you have a good civil claim for negligence against the creators of the DAO for the damages.
By a Honest Ponzi scheme I mean someone comes to you with a contract, and is not trying to be deceptive, is not trying to lie, doesn't have misleading marketing materials. He writes in Font size 36 : "This is a Ponzi scheme, it works the following way : [...]. You agree with all the risks involved when giving the money". This would work if this was Ponzi Scheme, or a Roulette game actually[.].
When you sign, there is a notarial act, and a video of you shaking hand and saying out loud that you understand this is a Ponzi scheme and you might end up loosing all your money, there is also some drug tests performed to make sure you are not under the influence of any drug, and some psychiatric evaluation to make sure you are not disabled in any way.
[.] Another thought slightly off topic: can I sue a Las Vegas casino because I put $100k on Red but the ball ended on Black and I lost everything? They even facilitate drugging me with C2H6O!
ponzi's are illegal, and not for being misleading, for having the financial structure of a "pyramid scheme". "disclosing" the structure makes it easier to prove that they fit what has been made illegal.
I'll give real world examples that go both ways:
1. Parking garage tickets: they include tiny little print saying the garage won't be liable for lost or stolen items from your car. Generally if your car is broken into those will be enforceable and the garage won't be liable.
2. Sky diving contract: include tiny little print that says if I die as a result of the companies negligence, they won't be liable and/or I waive my right to sue. Unenforceable, you can't waive negligence. (think about a skydiving school forgetting to pack a chute, someone dying, the family suing and losing, because of a defense that the deceased waived out negligence in the contract).
Lets look at a potential negligence claim against the creators of the DAO code.
1. By creating and soliciting investment for the DAO did its creators the investors a duty? If yes go on;
2. By creating code that allowed ~$40M of investors funds to be taken, was their a breach of that duty? if yes, go on
3. Did the substandard code result in damages to the investors? if yes go on
4. Can the investors prove monetary loss? if yes, you have a good civil claim for negligence against the creators of the DAO for the damages.