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17 - Artificial Intelligence and Contract Formation

Back to Contract as Bargain?

from Part III - Contracting and Dispute Resolution

Published online by Cambridge University Press:  08 February 2025

Stacy-Ann Elvy
Affiliation:
University of California, Davis
Nancy S. Kim
Affiliation:
Chicago-Kent College of Law
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Summary

Some commentators have said that artificial intelligence (AI) is advancing rapidly in substantial ways toward human-like intelligence. The case may be overstated. Advances in generative AI are remarkable, but large language models (LLMs) are talkers, not doers. Moves toward some kind of robust agency for AI are, however, coming. Humans and their law must prepare for it. This chapter addresses this preparation from the standpoint of contract law and contract practices. For an AI agent to participate as a contracting agent, in a philosophical or psychological sense, with humans in the formation of a contract, the following requirements will have to be met: (1) the AI in question will need to possess the cognitive functions to act with intention and that intention must cause the AI to take a particular action; (2) humans must be in a position to recognize and respect that intention; (3) the AI must have the capacity to engage with humans (and other AI) in shared intentions, meaning the cognitive capacity to share a goal the parties can plan for and execute; (4) the AI will have to have the capacity to recognize and respect the practical authority of law and legal obligation; (5) the AI will have to have the capacity to recognize and respect practical authority in a claim accountability sense, in accepting that a contract forms a binding commitment to others. In other words, the AI will not only have to be able to engage in shared intentionality but also understand and accept it as a binding commitment recognized by the law; and (6) the AI will have to possess the ability to participate in these actions with humans or in some hybrid form with humans.

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