Chapter 9: Artificial intelligence and the unconscionability principle
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Unconscionable conduct has emerged as a central regulating doctrine within Australian contract law, and the Parliament of Australia has used the concept of unconscionable conduct both as principle and as doctrine to regulate the commercial morality in a range of spheres. This chapter looks at how contract law might respond to artificial intelligence through the unconscionable conduct doctrine. It is argued that the law is going to have to restructure itself in order to answer the questions posed by new technologies. The problem is that the use of artificial intelligence technology dramatically and drastically reconfigures the contractual landscape such that a transactional imbalance is almost always present in any dealings between an AI-enhanced party and an ordinary human being. This confounds the ordinary paradigm upon which the unconscionability principle has been built. Instead of a transaction in which the two parties are in close proximity, such that knowledge, intention and exploitation are all discernible features of the procurement of the transaction and its outcome, artificial intelligence technologies bring in a degree of distance, a level of inscrutability and an inability to form the desire to act in a bad faith manner in a human sense.

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