1
Dealing with Intelligent Machines in Travel
Tourism Contracting

• Manuel David Masseno

"E-Commerce and Travel Trade" Seminar (Joint
Session IFTTA/LEFIS/UFTAA) Malta, 07/09/2006
2
What are Software Agents?

• Essaying a pre-comprehension of Software Agents
  (SA)
• A Technical Definition
• A Computer programs which react autonomously to
  changes of their environment and solve their task
  as far as possible independently.
• A Legal Definition
• a computer program, or electronic or other
  automated means, used by a person to initiate an
  action, or to respond to electronic messages or
  performances, on the persons behalf without
  review or action by an individual at the time of
  the action or response to the message or
  performance. (UCITA - Uniform Computer
  Information Transactions Act (2001) - USA)

3
Software Agents Characteristics

• As generally considered, SAs main traits are
• Reactivity (the ability to perceive an
  environment and respond tochanges that occur with
  it)
• Proactivity (the ability to initiate
  goal-directed behaviour)
• Autonomy (the ability to operate without the
  direct intervention of humans or others, and have
  some kind of control over their action and
  internal state)
• Social ability (the capacity to interact with
  other software agents or with human beings
  through a shared value)
• Adaptive behaviour (the ability to adjust to the
  habits, working methods and preferences of a
  user)
• Mobility (the ability to move around an
  electronic environment).

4
Economical and Legal Relevance

• Reduction of Transaction Costs
• retrieval of information
• performing contracts
• Customization
• Every clause might be under discussion
• Regulations on standard contracting will not be
  applicable to clauses that result from a SA led
  negotiation (vg, Council Directive 93/13/EEC of 5
  April 1993 on unfair terms in consumer
  contracts)
• Package Travel regulation might make no sense
  or see its scope greatly reduced (vg, Council
  Directive 90/314/EEC of 13 June 1990, even after
  Club-Tour ECJ - 2000)

5
European Legal Framework

• Electronic Law
• Directive 2000/31/EC of the European Parliament
  and of the Council of 8 June 2000 on certain
  legal aspects of information society services, in
  particular electronic commerce, in the Internal
  Market ('Directive on electronic commerce')
• Consumer Law
• Directive 97/7/EC of the European Parliament and
  of the Council of 20 May 1997 on the protection
  of consumers in respect of distance contract
• Directive 2005/29/EC of the European Parliament
  and of the Council of 11 May 2005 concerning
  unfair business-to-consumer commercial practices
  in the internal market
• Council Directive 93/13/EEC of 5 April 1993 on
  unfair terms in consumer contracts

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The European Legal Framework II

• Travel Law
• Council Directive 90/314/EEC of 13 June 1990 on
  package travel, package holidays and package
  tours
• EC Electronic Commerce Directive
• As stated at the Executive Summary of the
  Proposal text provided that Member States will
  ... not prevent the use of electronic systems as
  intelligent electronic agents
• Besides, Member States shall ensure that their
  legal systems allows contracts to be concluded by
  electronic means. Member States shall in
  particular ensure that legal requirements
  applicable to the contractual process neither
  create obstacles for the use of electronic
  contracts nor result in such contracts being
  deprived of legal effectiveness and validity on
  account of their having been made by electronic
  means.

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The European Legal Framework II

• 1. Member States shall ensure, except when
  otherwise agreed by parties who are not
  consumers, that in cases where the recipient of
  the service places his order through
  technological means, the following principles
  apply
• - the service provider has to acknowledge the
  receipt of the recipient's order without undue
  delay and by electronic means,
• - the order and the acknowledgement of receipt
  are deemed to be received when the parties to
  whom they are addressed are able to access them.
• 2. Member States shall ensure that, except when
  otherwise agreed by parties who are not
  consumers, the service provider makes available
  to the recipient of the service appropriate,
  effective and accessible technical means allowing
  him to identify and correct input errors, prior
  to the placing of the order.
• 3. Paragraph 1, first indent, and paragraph 2
  shall not apply to contracts concluded
  exclusively by exchange of electronic mail or by
  equivalent individual communications. (Article
  11)

8
National European Regulations

• Portugal Regulation of eCommerce (Decree-Law
  7/2004, of the 7th January)
• Contracting whithout human intervention
• 1. To contracting made exclusively trough
  computers, without human intervention is
  applicable the common rules
• 2. The rules on errors are appicable
• a) at the formation of will, if there a
  programming error
• b) at declaration, if there is a malfunction of
  the machine
• c) at conveyance , if the message arrives
  deformed at its destination
• 3. The other party may not oppose to the
  impugnation by error if it is expectable that the
  error could be detected, namely by the mean of
  apposite devices. (Article 33)

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The International Framework

• The UNCITRAL model law on electronic commerce (UN
  General Assembly Resolution 51/162 of 16 December
  1996)
• Article 2, provides that the originator of a data
  message includes both a person by whom or on
  whose behalf a message is purported to have been
  sent
• The Article-by-Article Remarks provide that
  data messages that are generated automatically
  by computers without direct human intervention
  are intended to be covered by subparagraph (c)
• Article 13(2)(b) attributes the operations of
  electronic devices to the person who originates
  the data message if it was sent by an
  information system programmed by, or on behalf
  of, the originator to operate automatically.

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Other Jurisdictions USA

• The U.S. Uniform Electronic Transactions Act
  (1999)
• Acoording to the Prefatory Note to the Act,
  the Act makes clear that the actions of machines
  (electronic agents) programmed and used by
  people will bind the user of the machine,
  regardless of whether human review of a
  particular transaction has occurred.
• However, it also states that While this Act
  proceeds on the paradigm that an electronic agent
  is capable of performing only within the
  technical strictures of its preset programming,
  it is conceivable that, within the useful life of
  this Act, electronic agents may be created with
  the ability to act autonomously, and not just
  automatically. That is, through developments in
  artificial intelligence, a computer may be able
  to learn through experience, modify the
  instructions in their own program, and even
  devise new instructions If such developments
  occur, courts may construe the definition of
  electronic agent accordingly, in order to
  recognise such new capabilities.

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Other Jurisdictions USA (II)

• (1) A contract may be formed by the interaction
  of electronic agents of the parties, even if no
  individual was aware of or reviewed the
  electronic agents actions or the resulting terms
  and agreements.
• (2) A contract may be formed by the interaction
  of an electronic agent and anindividual, acting
  on the individuals own behalf or for another
  person, including by an interaction in which the
  individual performs actions that the individual
  is free to refuse to perform and which the
  individual knows or has reason to know will cause
  the electronic agent to complete the transaction
  or performance. (Section 14)

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Other Jurisdictions USA (III)

• The U.S. Uniform Computer Information
  Transactions Act (2001)
• Its Official Comments state that The legal
  relationship between the person and the automated
  agent is not equivalent to common law agency, but
  takes into account that the agent is not a
  human. However, parties that use electronic
  agents are ordinarily bound by the results of
  their operations.
• (d) A person that uses an electronic agent that
  it has selected for making an authentication,
  performance, or agreement, including
  manifestation of assent, is bound by the
  operations of the electronic agent, even if no
  individual was aware of or reviewed the agents
  operations or the results of the operations.
  (Section 107)

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A Legal Fiction and its Consequences

• Just a bit more than vending machines
• In every jurisdiction, until now, SAs are seen as
  Messengers (Nuncius) of their user, since they
  convey a persons declaration of intention (Even
  if that person does not even know of any
  declaration or commercial operation going on)
• That is legally relevant only in terms of form of
  the declaration
• So, the user is fully bound for everything done
  by the SA, even by unexpected communications
  because it is theoretically possible that the
  Program would produce them.

14
Available remedies

• The Legal Disciplines of Agency / Representation
  are useless since SAs are not Legal Persons in
  any jurisdiction
• Create a Limited Liability Company that would own
  the Software Agents and be responsible for the
  deeds of the Software Agents
• However, in most jurisdiction a limited liability
  company may not create another limited liability
  company

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Foreseeable remedies

• Confer Legal Personhood to Software Agents
• Not in terms of moral entitlement, but of mere
  legal expediency based on social relevance, as in
  the case of limited liability unipersonal
  companies
• A Registration
• A Minimum of Patrimony that would be liable for
  the acts of the SA
• Situation similar to the one of the slave in
  Roman Law, where the peculium belonged to the
  Master but was the only patrimony hold
  responsable by the debts of the slave