Private Law Theory

ABSTRACT
Every couple of years, in parallel with sensationalistic headlines about the imminent emergence of artificial general intelligence, legal scholarship recycles the theory that as computer programs cannot have mental states, contracts formed by means of such programs cannot be valid or enforceable. Such contracts are, in other words, ‘unintended’ due to the absence of human intention at the time the contract is formed. Another line of theories attempts to ‘preserve’ contracts formed by means of sophisticated computer programs, frequently referred to as AI, by attributing such programs with their own ‘artificial’ intention and, in extreme scenarios, advocating their personhood. Purportedly, once programs reach a certain level of complexity or capacity, their deployment in the contracting process creates a host of doctrinal difficulties. Couched in increasingly dramatic terms, these theories derive not only from a conflation of technical terms, a surprising disregard for long-standing commercial practice but also from a misapprehension of the role of mental states in the process of contract formation. This chapter attempts to put such theories into perspective and address the main controversies resulting from the deployment of sophisticated computer programs, including those labelled as ‘AI’, at a various stages of the contract formation process. Focusing on its core principles, particularly the objective theory of contract, it demonstrates that contract law is technology neutral and generally unconcerned with the type or complexity of computer programs that one or both parties decide to rely on in their dealings. In principle, what matters is the output of the computation – not the computation itself.

Mik, Eliza, Artificial Intention, Unintended Contracts (April 1, 2025), Chinese University of Hong Kong Faculty of Law Research Paper No 2025-19; Research Handbook on the Law of Artificial Intelligence 2nd ed, Woodrow & Pagallo eds, ISBN 978 1 03531 648 9.