Rethinking Consideration in the Age of AI Contracting

Wait, What Is Consideration Again?

Quick refresher: Consideration is the value exchanged between parties in a contract. It can be money, services, promises, or obligations. Without it, a contract isn’t legally binding in many jurisdictions. Traditionally, humans negotiate the value, fairness, and scope of consideration, and courts can assess its adequacy, especially when things go south.

So Where Does AI Fit In?

AI doesn’t “value” things in the human sense. It doesn’t understand goodwill, reputation, or future potential, it works on data, patterns, logic, and training. When AI systems are used in contract creation or review, the challenge is this: can AI truly recognise or assign meaningful value to a non-monetary promise?

Let’s say a startup offers free access to its AI tool in exchange for user feedback to improve its model. The “consideration” here is data and improvement suggestions. For a human lawyer, this might pass as a mutual benefit. For an AI drafting system? Unless it’s explicitly trained to recognise this dynamic, it might not even flag it as a consideration.

Real-Life Scenarios in AI Contracting

1. AI-to-AI Negotiation

In experimental settings and emerging tech ecosystems, we’re seeing AI agents negotiating with other AI agents, like in procurement, supply chain logistics, or trading platforms. These agents make real-time decisions and agree on transactions based on data, not sentiment.

But if one AI miscalculates the value of a service or accepts a skewed price due to bad data, who’s responsible? And does the output still satisfy the legal threshold for valid consideration if no human ever reviewed it?

2. AI-Assisted Legal Drafting Tools

Tools like ClauseBuddy, Juro, or even Perplexity AI are being used by contract lawyers to propose, review, and revise clauses. They help match risks with value, generate payment terms, and offer redlines based on precedent. These tools don’t create contracts in a vacuum, but they heavily influence how consideration is framed.

The risk? Over-reliance. If an AI tool recommends a one-sided value exchange and the user doesn’t double-check, does the contract still hold up in court? The answer might depend on jurisdiction, but it's increasingly clear that human review is still essential.

3. Custobots and Digital Consumers

In the world of algorithmic commerce, Custobots, AI-driven purchasing agents—make decisions on behalf of consumers. They compare prices, track user preferences, and initiate transactions. But when they engage with AI-powered vendors, we enter uncharted legal territory: AI contracting with AI.

Is a transaction initiated by a Custobot and accepted by a vendor AI still bound by human-defined notions of fairness and value? If the bot accepts a low-quality service for a high price because it misread the context, is that enforceable?

Legal Questions We Can't Ignore

1. Can AI identify non-traditional consideration like goodwill, IP licensing, or future access rights?
2. If a contract is entirely generated and executed by AI, who is accountable for ensuring consideration exists and is adequate?
3. Should legal systems evolve to recognise AI-generated consideration frameworks, especially in B2B settings where machine-speed transactions dominate?

Future-Proofing AI Contracting

Here’s where industry leaders need to step in. Whether you’re developing AI contracting tools or deploying them across your legal team, the focus should be on:

1. Embedding contextual intelligence into AI models to better understand intangible value.
2. Building in human-in-the-loop safeguards for high-risk contracts.
3. Developing explainability protocols so AI-generated agreements can be audited and challenged if consideration is in question.

Conclusion: Contracts Are About Trust, Even When AI’s In Charge

AI may not “feel” value, but it’s shaping the way we define and enforce it. As we transition from AI-assisted to AI-generated contracts, the legal concept of consideration will need an upgrade. Until then, it’s on legal teams, technologists, and regulators to bridge the gap between black-letter law and black-box algorithms.

So, the next time your AI tool drafts a “great deal,” pause and ask: Who decided what it’s worth, and did anyone double-check?

If your organisation is experimenting with AI tools in the contracting process, now is the time to assess whether your systems understand not just how to draft terms, but how to value them. Reach out to White Bison. to explore how to align your AI contracting strategy with legal and commercial realities.