Private Law Theory

ABSTRACT
Artificial Intelligence’s (AI’s) future in law sparks polarized assessments with supporters advocating limitless potential, while skeptics challenge its promises. A middle ground, however, is created by scholars grappling with binary questions like ‘can AI surpass human intelligence’, and ‘should it be allowed to capture activities that exclusively fall within human intellectual province’? Despite these debates, contract law sees strong support for AI-driven automation, particularly in the domain of contract formation. The most contentious issue is eliminating human presence in contract formation, which challenges underlying theories of contract and demands strong ex post enforcement rationale. This article reconsiders the reductionist assumption that AI in contracting is inherently harmless, advocating a nuanced approach to reconcile feasibility and legality. Such reconnaissance must consider two key factors: firstly, the private nature of contract law and parties’ decision-making autonomy, and secondly, ‘dynamism’ as a central operative aspect of contract law sustained by continually redefining its boundaries over centuries of socio-technological changes. We argue that these characteristics are immutable in contract law and merit careful analysis before deciding the strategy of AI deployment.

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Arindam Basu and Anshuman Sahoo, Contracting With Artificial Intelligence: Assessing Autonomy under Uncertainty, European Review of Private Law volume 33, issue 5/6 pp 1103-1124 (2025).