11 THE ITALIAN LAW JOURNAL NO. 1 (2025)
Human Autonomy and Artificial Intelligence Agency. A New Dilemma for Contract Law: Automated Contracting or Intuitu Homini Contracts
byTeresa Rodríguez de las Heras Ballell Automation in forming and performing contracts is proving to be a major revulsive for Contract law. Contract law evolves with the transformation of our economy and society, and today’s economy is not only digital, but essentially automated. The penetration of AI in contracting involves ‘distancing humans’ from contracts and challenging the notion of (human) autonomy and its meaning and significance for Contract law. This Paper traces how Contract law, with the contribution of Italian legal doctrine, has confronted and resolved various dilemmas concerning the conception, role and meaning of contracts in society. Today, automation represents a new and challenging dilemma which means the literal ‘disumanizzazione del contratto’: automated contracts or ‘intuitu homini contracts’. Contract law has to decide (whether and) how to embrace ‘human distance’ or even ‘human absence’ in ‘automated contracting’. This Paper advocates for the legal recognition of automated contracts following the UNCITRAL Model Law on Automated Contracting and the ELI Principles on Automated Decision-Making, while proposing and coining the emergence of ‘intuitu homini contracts’ in which parties limit the use of automated systems in forming or performing their contracts. DOI 10.23815/2421-2156.ITALJ ISSN 2421-2156
