On November 7, 2023, another event took place in hybrid form as part of the lecture series "Automated Systems". The Chair of Civil Law, European and International Business Law (Prof. Dr. Buck-Heeb) and the Chair of German, European and International Civil and Commercial Law (Prof. Dr. Dr. h.c. Oppermann) together with the Interdisciplinary Institute for Automated Systems e.V. (RifaS) had invited to this event.
This time, Prof. Dr. Tim Dornis, holder of the Chair of Civil Law and Intellectual Property Law at Leibniz University and Global Professor of Law at the NYU School of Law in Paris/New York, was invited to speak. Prof. Dornis dealt with the phenomenon of artificially intelligent systems when concluding contracts. Examples include - at least in the context of future considerations, even if not yet implemented in reality - agents on online marketplaces or so-called robo advisors on the financial markets. In the future, they could possibly determine and evaluate the circumstances relevant to the contract and then bring about an agreement with the contractual partner. In view of chatbots such as ChatGPT, active negotiation with the contractual partner regarding the specific content of the contract also appears to be only a matter of time.
It will be exciting if the technology used is self-learning, i.e. not just an ordering aid or an online ordering function (as is currently the case with printer cartridges, for example). In such cases, humans typically no longer have any control over the specific transactions. After all, the AI acts autonomously and independently of human control in these constellations. In this respect, the question of autonomous contract conclusion arises.
It is already unclear how such AI behavior fits into the structures of contract law. The questions that arise are as numerous as they are unresolved: Is a contract concluded? Who are the contracting parties? What should apply in the event of AI malfunctions? After outlining the different views in the academic literature, the speaker presented his own approach. In his opinion, the cases relating to the "contracting" autonomous smart devices should be solved by analogy via a liability for reliance and legal appearance in accordance with Section 172 (2) BGB. There is an unintended regulatory gap that can be closed by applying this. The element of reliance could be created by a prima facie case in accordance with "customary practice" (legal concept of Section 56 HGB).
Prof. Dornis then demonstrated the practical consequences of this view using two case studies. The first case related to typical future scenarios of AI use, for example on platforms. Here, an advance agreement on the legal validity of the AI behavior will usually be made, which will regularly be done through GTCs subject to GTC control. This means that no further open questions of attribution or liability arise here.
The second case concerns atypical scenarios, such as AI systems that are active "online alone". Only in such (exceptional) cases is it relevant to rely on reliance and legal liability. Legal certainty can be created here by requesting the other party to declare the validity of the AI declaration (arg. e Sections 108 (2) sentence 2, 177 (2) sentence 2 BGB). Specifically: The AI discloses that it is AI and demands the "consent" of the other party.
The presentation was followed by a lively discussion. Among other things, the autonomy risk and the dangers for private autonomy were addressed. The phenomenon of "algorithmic consumers" and aspects of competition law were also addressed. For more information on the above-mentioned topic, please refer to the article by Prof. Dornis in AcP 223 (2023), 717 ff.
About the lecture series "Automated Systems"
More information about the lecture series "Automated Systems" and further reviews of past events can be found here.
About the Interdisciplinary Institute for Automated Systems e.V. (RifaS)
The institute was founded in fall 2017 and stands for interdisciplinary, national and international research in various areas of automated systems. The research areas can be divided into transport and mobility, production and business, and medicine. The institute brings together both scientists and practitioners and is not only active in research, but also in teaching.
Information on current events can always be found at www.rifas.de.
