Publication Type
Journal Article
Version
acceptedVersion
Publication Date
1-2022
Abstract
A ‘Contracting Problem’ arises when software is used to autonomously enter into contracts without human input. Questions arise as to how and whether there can be an expression of an objective intention to be legally bound. This article considers three leading solutions to the Contracting Problem. The ‘Mere Tools Theory’, which views software as ‘mere tools’ of communication, is too harsh as it binds users to any software malfunction. The Agency Approach, which treats software as Electronic Agents, capable of contracting on behalf of their users, is untenable as it ascribes unrealistic characteristics to software. The article submits that the optimal solution is to extend the objective theory of contract. Where software produces an unintended consequence, this should be seen as a mistake. An optimal way of risk allocation is for parties to be bound by the representations of their software, unless the other party has knowledge of the mistake.
Keywords
Contract law, Law and technology
Discipline
Privacy Law | Science and Technology Law
Research Areas
Private Law
Publication
Journal of Business Law
First Page
97
Last Page
117
ISSN
0021-9460
Identifier
10.2139/ssrn.3322308
Publisher
Sweet and Maxwell
Citation
OOI, Vincent.
Contracts formed by software: An approach from the Law of Mistake. (2022). Journal of Business Law. 97-117.
Available at: https://ink.library.smu.edu.sg/sol_research/4285
Copyright Owner and License
Authors
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Additional URL
https://doi.org/10.2139/ssrn.3322308