Intelligent contracting: legal aspects of the precontractual use of artificial intelligence

The precontractual use of artificial intelligence (AI) systems is on the rise. Parties increasingly often use such systems as a source of information, or they delegate the negotiation and formation of the contract to AI systems. Alternatively, they may leave it to the AI system to determine certain elements of their agreement, to avoid having to determine them themselves. This is highly problematic, as the application of the legal regime to such uses of AI systems is ambiguous. This is caused by the focus of the existing legal regime on humans. Consequently, concepts like ‘diligence’, ‘fault’ and even ‘human will’ are hard to apply to AI systems.

The present research aims to eliminate this ambiguity. To this end, the application of these legal rules to AI systems is considered. Subsequently, it is considered whether this application can be positively evaluated. To the extent that this is not the case, adaptations to the contract law framework are proposed, that will help the existing legal system deal with current and future technological evolutions.