The purpose of this chapter is to determine how the emergence of digtal delgates would affect the process of contract conclusion and how consumer law might need to be supplemented to strike an appropriate balance between utilising the potential for automation, where desired, with the ability of consumers to remain in control.

The AI agent does not have legal personality. It cannot be sued in court and it has no patrimony. Therefore, applying the law of agency seems to depend on granting intelligent agents a legal personality. Without legal personality, no declaration of intent would exist; without a declaration of intent, the law of agency is not applicable. Applying agency law principles to the problems that arise as a result of transactions generated by AI agents creates more problems than solutions. Therefore, applying the law of agency seems to depend on granting intelligent agents a legal personality.

This chapter highlights “agreements” and other legal instruments as the most convenient and functional mechanism by which existing private law can recognize algorithms. Algorithms with verifiable state can be the basis for contractual terms and conditions and can thereby be recognized by legal processes. This general mechanism is a better practical and conceptual fit than other proposed legal treatments for algorithms, such as the common law of agency (i.e., vicarious action).

Unlike privacy law discourse, which has primarily explored questions related to others’ knowledge, access, and use of information about us, commercial law’s central focus has been on issues related to trade involving persons, merchants, and entities. In the commercial law context, questions about knowledge and information are primarily connected to the exchange and disclosure of information needed to facilitate transactions between parties.1 This distinct historical focus has likely contributed to commercial law’s failure to adequately account for and address privacy, security, and digital domination harms. In some cases, commercial law also defers to corporate commercial practices as well.