Is a party to a contract who writes it using an LLM considered the author?

Question

Bob is selling a vehicle to Alice. He asks ChatGPT to write a contract, and it does, for some reason, write it. (It has filters in place to prevent users from writing legal documents, but these filters might be possible to bypass.) They both skim over the contract and sign it; the document they sign has the exact text from GPT with no changes or additions.

Unsurprisingly, given the nature of current generative AI technology, there is an ambiguity in the text. This materially affects the transaction, and they cannot settle the dispute themselves, so they to to court. If Bob had written it manually, the court would likely resolve the ambiguity in Alice's favor. Is that still the case when he had an AI write it? If not, would it be the case if he had slightly edited the AI output, but the ambiguity were in a part that the AI wrote?

Answer 1

There are several ways of expressing the doctrine of contra proferentum and the more careful do not refer to the concept of literal authorship. The rationale for the doctrine depends more on power, incentives, and allocation of risk than on anything special to authorship in the creativity sense.

The Supreme Court of Canada has described the doctrine as follows (Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888):

contra proferentem [is the] doctrine by which any doubt as to the meaning and scope of the excluding or limiting term is to be resolved against the party who has inserted it and who is now relying on it

And in special contexts, the rule is expressed as calling for interpretation in favour of the consumer, or in favour of the insured, without any reference to authorship (this presumes that the more powerful party — the seller, or the insurer — has imposed a contract of adhesion).

A court applying the doctrine of contra proferentum would almost certainly construe the term against the party who had charge of the production of the term. I do not see any reason why it would change the analysis if the person in charge of producing the term used an LLM to do so.

Answer 2

If Bob had written it manually, the court would likely resolve the ambiguity in Alice's favor.

You are referring to the doctrine of contra proferentem, and it is often, as you have, given more weight than it should because it is the doctrine of last resort. In modern jurisprudence, judges rarely get to this point.

Where a clause is ambiguous, the preferred approach is to look at the contract as a whole and adopt the interpretation that makes the most commercial sense to reasonable people in the position of the parties when the contract was made. Given that the contract's purpose is for the vehicle to be transferred from Bob to Alice and the money to go from Alice to Bob, what interpretation makes this happen in the most straightforward and "normal" way? That's the one to use.

In a consumer contract, there may be specific consumer protection laws that help with this interpretation.

In any event, in circumstances where neither party has proffered the contract (or where contra proferentum has been specifically excluded), the doctrine is simply unavailable.