Hur påverkas avtalsmekanismen av digitaliseringen? - Särskilt om artificiell intelligens

Sammanfattning: The purpose of this study is to investigate the ways that the Swedish Contracts Act on the formation of contracts is affected by the increasing digitalization in our society. The study also aims to investigate how the increased use of AI, which in some ways is closely correlated to digitalization, effects the formation on contracts. The Swedish Contracts Act has long been critiqued for being old and ineffective and the study analyses this critique alongside recent cases relating to digitalization and contract law. A traditional legal method has been used to achieve the purpose of the study. This means that the sources of law used are generally accepted and include, legal text, legislative history, case law and jurisprudence. Since the study focuses on the formation of contracts the first chapter of AvtL and its legal text and legislative history have been the most important sources of law. Since the study also aims to analyse recent cases in the Supreme Court, case law has also been an important source. The concept of law and AI is still quite under researched in Sweden which has made jurisprudence from other countries has been a valuable source of information in regards to the concept of law and AI. Regarding digitalization several government inquiries have been valuable sources of information. The conclusion of the study is that digitalization has and will continue to have an increasing role on today’s society. This development has led to new methods to form contracts and it is likely that even more methods will develop in the future. The critique against the Swedish Contracts Act has dissipated during the last few years since some of the worries have been shown to be unfounded. Increasing digitalization has led to several cases being tried in the Supreme Court that had a direct or indirect connection to the formation of contracts. The cases have shown that the Supreme Court is willing to make ambitious analogical comparisons between current methods on the formation of contracts to be able to apply the same principles on new methods on the formation of contracts. The cases have also shown that the Supreme Court believes that laws should be neutral technology wise. This means that even if a law was formed a long time ago, before electronic ways of forming contracts were available, it should apply to a new, electronic way of forming a contract. The protection that the law is supposed to offer needs to be fulfilled by the new electronic method of forming a contract however. The cases have also shown that the Supreme Courts lack of knowledge in about digitalization and new technology could be problematic. The study has further concluded that the use of AI will increase in the future but also that the AI that is used today has not yet brought all the problematic questions in regards to contract law and AI to a head yet. It has been concluded, however, that if this happens, the use of AI will bring about several problems regarding the formation of contracts in the Swedish contracts act. Will and intent have long been aspects of contract law only applicable to humans but there is support for them to be applied to AI as well when a certain degree of technological advancement has been made in regards to AI. AI as a legal subject has been discussed and it can be concluded that there is widespread support that several problems would be solved if AI was to become a legal entity. Comparing AI to humans is a radical and in the view of many an inappropriate comparison. Applying attributes that have long been considered human would entail a much more ambitious analogical comparison then anything in the Supreme Court tried in the cases in this study.