Electronic Agents and the Formation of Contracts

Abstract

In this paper, an analysis is made of the increasingly active role of electronic agents, especially intelligent agents, in the negotiation and formation of contracts. Among the different doctrinal solutions that might be applicable is to consider conferring some degree of legal personality on agents or, at the other extreme, to treat them as mere communication tools. Another alternative discussed is whether intelligent agents should be considered as agents under the law of agency. Following an analysis of the two main theories of consent – the subjective and the objective theories – it is argued that the objective theory is applicable to the use of electronic agents in contracting. There is then a short examination of some enacted legislation that deal with contract formation through the involvement of electronic agents. Finally, some practical considerations for the widespread use of electronic agents in electronic commerce are highlighted, and some solutions proposed.