Applicability of the Provisions Regarding Assistant Performance to Artificial Intelligence

In today’s technological world, although artificial intelligence does not yet have the ability to make autonomous decisions, it is used in mass production processes in order to minimize human errors and increase efficiency. With the use of artificial intelligence in mass production, the consequences of this technology, which has become a tool in the performance of contracts, have begun to gain importance in terms of contract law.

According to Article 83 of the Turkish Code of Obligations; unless the creditor has a special interest in the personal performance of the obligation arising from the contract, the obligation may be fulfilled by a third party. However, in cases where the creditor has a special interest in the personal performance of the obligation, if the obligation arising from the contract is fulfilled by a third party, the debtor is liable for his/her behavior contrary to the obligation according to Article 112 of the Turkish Code of Obligations. However, it is possible for the debtor to fulfill the obligation arising from the contract by using an assistant person.

According to Article 116 of the Turkish Code of Obligations, which regulates the debtor’s application to an assistant person in the performance of the obligation; ‘‘Even if the debtor has lawfully left the performance of the debt or the exercise of the right arising from a debt relationship to his assistants, such as the persons he lives with or his employees, he is obliged to compensate for the damage they cause to the other party while they are carrying out the work.’’ As can be seen, the Law permits the debtor to resort to assistants in the performance of the debt. According to the dominant view in the doctrine, if the debtor resorts to assistants in the performance of the debt, the debtor is liable for the damage that occurs, regardless of whether the assistant is at fault.

On the other hand, if the debtor uses an artificial intelligence-supported software or machine, whether Article 116 of the Turkish Code of Obligations can be applied regarding the application of an assistant in the performance of the debt, or, more clearly, whether it is possible to accept the artificial intelligence as an assistant, is controversial in the doctrine. The debate is whether the artificial intelligence is a means of performance or an assistant in performance.

In its recent decision, the Swiss Federal Court discussed the liability of the debtor for the transactions carried out by autonomous software within the scope of the liability of the subagent. An Israeli company entered into a proxy agreement with a bank in Switzerland to list its registered shares on the Swiss stock exchange, and under this agreement the Swiss bank undertook to ensure orderly market operations by regulating the offer price and the bid price. The bank carried out the transactions carried out under the agreement through a software without consulting any bank employee. Thereupon, the plaintiff company claimed that the bank’s fulfillment of its debt, which it was personally obliged to fulfill, through the software constituted a delegation to someone else through a subagent, that this constituted a violation of the obligation since it was a debt that had to be fulfilled personally, and that on the other hand, the bank also violated its obligation to inform the company because the company was not notified of the performance through the software. The first instance court examined the lawsuit filed for performance through the algorithm within the scope of unlawful delegation and determined that there was no violation of this provision, considering the use of the algorithm as a means of performance. The Federal Court also acted in the same direction and decided that the bank would not be liable since the software is a means of performance.[1]

According to the prevailing view in the doctrine, the assistant to the performance can only be a natural person or a legal entity. In other words, the assistant to the performance must have the capacity to act. Therefore, according to the prevailing view in the doctrine, it is not possible to qualify artificial intelligence as an assistant to the performance by directly applying Article 116 of the Turkish Code of Obligations. However, in the Swiss doctrine, an opinion has been frequently put forward recently that the provisions regarding the assistant to the performance of the artificial intelligence used in the performance of the contract should be applied by analogy.

In order for Article 116 of the TCC to be applied by analogy, certain necessary conditions must be met. First of all, in order for a provision to be applied by analogy, there must not be a provision in the law that can be directly applied to the concrete case. Secondly, when the balance of interests in the concrete case is evaluated, it must be legitimate to apply the provision by analogy. In terms of the first condition, the use of technologically advanced means of performance such as machines, software, and robots has not been regulated by the legislator. Secondly, in this matter, which is not regulated by the Law, the debtor prefers the operation of a software that replaces human behavior, not the performance of a real or legal person who assists in the performance. In other words, the debtor leaves the performance not to a person, but to a software that can replace that person. It should be noted that, in order for Article 116 of the Turkish Code of Obligations to be applied by analogy, it is not important for the software to have a legal personality and legal capacity; what is important is that the software’s act can be attributed to a legal person.[2] Therefore, the gap in the Law can be eliminated by applying Article 116 of the Turkish Code of Obligations by analogy.

[1] Işık Aslı Han, ‘‘Sözleşmenin İfasında Yapay Zekanın Kullanılması Halinde Yardımcı Kişinin Fiillerinden Doğan Sorumluluğa İlişkin Kuralların Uygulanabilirliği,’’ GSÜHFD, 2024, C.2, s. 1304-1305.

[2] Işık Aslı Han, ‘‘Sözleşmenin İfasında Yapay Zekanın Kullanılması Halinde Yardımcı Kişinin Fiillerinden Doğan Sorumluluğa İlişkin Kuralların Uygulanabilirliği,’’ GSÜHFD, 2024, C.2, s. 1306.