>Do you think that if you use your phone's autocomplete to make an offer to a customer it is somehow not binding?
Once again, just because ChatGPT said it, doesn't mean it's actually legally binding. This would be thrown out of court. It's no different than changing your name to "Free Chevy" and then claiming you're owed a free vehicle because those exact words appeared on the website.
Okay, and? If I put "Powered by GBoard" on my emails they are suddenly not binding?
This is as obviously non-binding as anything could possibly be. All the dealership has to do is say "no, we don't sell cars at that price".
The conclusion is that you probably shouldn't trust ChatGPT to represent your company.
I think it's ridiculous to use ChatGPT for things like customer support. This time it's someone writing a basic prompt and expecting the AI to do what it says, but next time it could very well be someone who's unfamiliar with ChatGPT (remember that lawyer that thought ChatGPT was a search engine, and when confronted by the judge about made-up cases, doubled down and asked ChatGPT if ChatGPT was telling the truth?) who honestly believes they're haggling over a car with a real representative. Best case scenario they feel cheated by the company, worst case scenario a judge forces the company to honour the deal.
Every law student learns about this case in Contracts during their first year of law school: https://en.wikipedia.org/wiki/Leonard_v._Pepsico,_Inc.
I'm sure some people said there obviously was no contract then either, but it was litigated at some length in federal court.
With respect to US common law, unless there is a statute or case "on point," it's potentially an open field.
A lot of AI-related litigation is happening right now to begin to settle some of these issues.
* You can't actually delegate agency to a computer. The Restatement of the Law of Agency says an agent must be a person.
* No, an LLM is not a human, so it can't make contracts in any respect.
* If you agree in an actual contract to be bound by the black box of the LLM, then the LLM will govern the terms thereof. You could theoretically make an unconditional offer to agree to such a contract if you really wanted to.
* Any electronic record is a writing for the statute of frauds, so unless you're piping your LLM to TTS to their speakers without any record, it should satisfied as a written memo in the above case when you really want to have ChatGPT sell your house.
* Again, LLMs can't form contracts. If the company actually accepted a customer's offer, they'd look at the intents of each actual party and parol evidence. What the LLM "knows" is irrelevant.
* It's hard to imagine a scenario where an LLM is involved in an integrated contract.
It is rather interesting to imagine how a court would handle a scenario where a customer actually thinks they are making a contract with a company through a chatbot though. Generally anything a computer does is just going to be seen as preliminary negotiations. When the customer "agrees" with the computer, it's legally the customer making an offer to the company, which then accepts the contract when they actually perform the contract/ship the order. I could see in some cases how companies could be bound by some form of reliance or quantum meruit or dinged for false advertising.
But...
> you agree in an actual contract to be bound by the black box of the LLM, then the LLM will govern the terms thereof.
This implies you can have a standing offer of a contract on the terms articylated5 by the LLM, with some specified method of acceptance, which suggests a different outcome than the “preliminary negotiations” you suggest for a contract where the LLM system is the frontend of the cobtract5 negotiation, provided that the reason that the outside party thought they were negotiating a cobtract with the company via thr LLM is that offer by the company.
> an LLM is not a human, so it can't make contracts in any respect
Probably the most contentious question relates to AI inventorship, which is disallowed under Thaler v. Vidal (Fed. Cir. 2022), but is already laughably out of date with respect to the technology. The decision draws a similarly hard line regarding whether an inventor must be a human or not based on statutory interpretation.
But the patent office will soon be inundated with AI-authored or AI-assisted inventions, if they aren't already. Applicants will simply just not admit it or possibly opt for trade secret protection instead. Meanwhile, other countries may not take such a hard line, and that IP will make its way to China or the EU or wherever.
Of course this is all science fiction right now, since it's an open question as to whether an LLM will invent anything useful, but it's not implausible. My point is that I believe the question will be revisited very soon.
Does Amazon manually review every purchase made on their site? This seems not to be true at least for some contracts.
The rest seem to fall along a similar vein. If you believe software cannot act as an agent for a corporation in creating sales contracts, then similarly it should follow that what you're suggesting is true -- LLMs cannot act as an agent.
But we know that is not the case in some circumstances.
This raises all kinds of interesting legal issues that have no obvious resolution:
* can agency be delegated to an LLM?
* can an LLM create a contract on behalf of itself? another? an organization?
* does the answer change if the person(s) or organization(s) want the LLM to be able to form contracts?
* are contracts created by an LLM bound by the statute of frauds?
* what happens with unspecified contract terms given that an LLM has perfect knowledge of the UCC?
* does the parol rule apply to the LLM conversation prior to the formation of a contract?
And on and on. Law students all over the world are busy writing law review articles about these questions.