Agentic Contracting Shifts Transaction Liability from Boardrooms to Server Logs

AI agents are moving from “draft and suggest” into “click and commit,” wired into procurement portals, ad platforms, marketplaces, and bank rails with credentials that let software accept terms, place orders, and route payments without a fresh human decision at the moment of action. For lawyers, the headline is not whether a machine can intend to contract. The real issue is how fast ordinary doctrines, agency allocation, online assent, and payment-system rules will be asked to absorb a new operational fact: the business deliberately authorized code to bind it in the world.

When Code Makes the Deal

U.S. law already anticipates electronic agents forming contracts, even when no person reviews the interaction in real time. The Uniform Electronic Transactions Act (UETA) includes a dedicated provision for automated transactions, recognizing contract formation through the actions of electronic agents in the ordinary course. At the federal level, the E-SIGN Act’s general validity rule prevents a contract from being denied legal effect solely because it is electronic, and it explicitly addresses “electronic agents” in the statute’s structure and definitions.

That statutory posture matters because many “AI agent” deployments are simply a modern way to do an old thing: automate formation and performance. The new risk is not that contracts are void because software touched them. Instead, it is that businesses will discover, after a dispute, that they built a high-speed contracting engine that silently imported arbitration clauses, venue provisions, unilateral amendment language, data-use permissions, or fee-shifting terms across hundreds or thousands of transactions.

There is also a federalism wrinkle that becomes sharper at scale. UETA is a model state statute and is not uniform in every corner of practice. New York, for example, did not adopt UETA and instead relies on its own electronic signature regime under the Electronic Signatures and Records Act in State Technology Law Article 3. That does not change the core reality that automated contracting is legally recognized, but it does raise diligence stakes for national deployments, especially when your agent is accepting terms that try to dictate governing law, forum, or arbitration through a single automated click.

The practical upshot for an American lawyer audience is straightforward: “formation” is rarely the hard question. The hard questions are attribution, authority, notice, mistake, and remedy, plus the contractual allocation battles that follow when a vendor stack is involved.

Attribution, Not Anthropomorphism

The word “agent” tempts people to think in personhood terms. Courts and regulators tend to think in allocation terms. UETA’s automated transaction framework treats the electronic agent as an instrument of the party that uses it, and the E-SIGN Act similarly frames enforceability around whether the electronic agent’s action is legally attributable to the person to be bound under applicable law, with statutory context grounded in the Act’s definitions and validity rule in 15 U.S.C. § 7001 and the definitional section in 15 U.S.C. § 7006.

For organizations with an international footprint, it is also worth noting the ongoing global alignment. The UNCITRAL Model Law on Automated Contracting (MLAC), adopted in July 2024, provides an international framework for automated transactions, often reinforcing the attribution-based approach taken by U.S. law and aiming to reduce legal impediments to cross-border automated commerce. While not controlling in the U.S., it signals a global consensus on the need to manage this risk.

In litigation, attribution fights will look less like science fiction and more like forensic governance. Who provisioned credentials. Who approved tools and plugins. What permissions the system had. Whether it could add a new payee or counterparty. Whether the system could accept new terms without human review. Whether logs show the sequence of actions, the prompts or policies in effect, and the versioned terms presented at the moment of assent.

That evidentiary posture can cut both ways. If the business wants to enforce favorable terms that its agent secured, it will argue attribution aggressively. If the business wants to unwind a bad deal, it will argue the agent exceeded authority or lacked meaningful assent. The organization that has built a clean audit trail and a disciplined authority model will be better positioned on either side of that argument, because it can tell a coherent story about what the system was allowed to do and what controls constrained it.

A subtle but recurring risk is rhetorical liability. Some enterprises market internal deployments as “fully autonomous” in ways that imply no one is responsible. That language can become a litigation liability. A safer governance posture is operationally honest: the business intentionally empowered a system to act, and the business maintained oversight designed to prevent predictable failures.

Notice and Assent at Scale

Online contracting doctrine still applies when the “clicker” is software. The fact pattern changes, but the legal questions remain recognizable: did the user have reasonable notice, and did the user manifest assent. Agentic deployments raise stakes because they can accept terms at volume and at speed, often through interfaces designed for humans, not automated systems.

Cases policing browsewrap versus clickwrap remain relevant guardrails. In Nguyen v. Barnes & Noble Inc., the Ninth Circuit focused on reasonable notice and assent, refusing to enforce terms where the design did not adequately put the user on notice and did not require an affirmative manifestation of assent. That reasoning can surface in agent disputes too, particularly where a counterparty relies on buried terms or confusing presentation and then insists an automated “accept” bound the principal to arbitration, venue, or sweeping waivers.

For counsel, this is not an argument for avoiding automation. It is an argument for term hygiene. If the agent is going to contract on your behalf, your organization needs a controlled intake: approved platforms, preferred term sets, and a gating model for clauses that can materially alter risk. Many enterprises will find a workable split: the agent can populate, negotiate within defined parameters, and assemble an order, but the final assent step is limited to preapproved templates or routed to a human for high-risk clauses.

If the business must automate assent end to end, documentation becomes the backstop. Capture the precise terms version accepted. Preserve a durable record of presentation and acceptance. Make sure the organization can later prove what the agent saw and what it agreed to. In a dispute over arbitration or unilateral amendment clauses, “we cannot reconstruct what happened” is rarely a winning position.

Authority Boundaries and Apparent Power

Once a contract is formed, authority becomes the next fault line. Businesses are granting agents permission to reorder inventory, buy ads, purchase software seats, negotiate routine procurement, and trigger subscriptions. When something goes wrong, companies often want to characterize the transaction as unauthorized because the agent exceeded internal limits. Counterparties often respond with the familiar playbook: apparent authority, course of dealing, and ratification, especially when the agent used credentials issued by the enterprise and operated through accounts that looked authorized.

The agent era makes this problem sharper because it can multiply quickly. A human employee can exceed authority, but an agent can do it in bursts: a runaway ad buy, a cascade of subscriptions, a procurement loop that optimizes for availability rather than cost. By the time finance catches it, the company may be arguing about rescission or restitution rather than prevention.

This is where permissions become legal architecture. If the agent can spend, it should not have unfenced access to payment rails. If it can initiate payments, it should be limited to whitelisted beneficiaries and capped amounts. If it can accept contract terms, it should be constrained to vetted templates and known counterparties. If it can change its own tools or connectors, it should not be able to escalate privileges without independent review. These controls read like cybersecurity, but in disputes they function as the proof system for authority: what the business actually permitted, and what it took reasonable steps to prevent.

The defensive posture is not ‘the agent was not supposed to do that.’ The proving posture is ‘the agent could not do that without bypassing controls,’ supported by logs, approvals, and technical enforcement that match policy language. That alignment is what makes an ‘outside authority’ argument credible.

Payments and the Reversal Clock

Autonomous transactions become legally expensive when they meet money movement. Here, the liability story shifts from contract doctrine to payment-system rules, bank agreements, security procedures, and statutory frameworks that define “error” and “unauthorized.” For consumer electronic fund transfers, the Electronic Fund Transfer Act’s implementing regulation, Regulation E, includes detailed error-resolution procedures, with the operative rule in 12 CFR § 1005.11 and the CFPB’s parallel presentation in CFPB Regulation E commentary and text.

In commercial contexts, especially wire transfers, disputes often run through UCC Article 4A, which is built around agreed security procedures and allocation of loss when payment orders are accepted under those procedures. The key concept is not whether a human “meant” the payment, but whether the payment order was authorized and verified under the applicable rules and agreements, with provisions such as UCC § 4A-202 framing authorization and verification concepts. When an enterprise allows an agent to initiate payment orders using valid credentials and procedures, the enterprise can face a steep uphill climb later arguing the transfer was unauthorized in the sense the payment system recognizes.

That is why time is a liability variable. Payment systems reward rapid detection and escalation. Delays can reduce reversal options and can change legal posture, especially where contractual notice obligations or regulatory timelines matter. An agentic system that can move money should be accompanied by monitoring tuned to unusual behavior and a playbook that can revoke credentials, freeze flows, and preserve evidence quickly.

For counsel advising enterprise clients, the practical strategy is layered. Narrow what the agent can do by design. Align bank security procedures with the reality of agent-initiated activity rather than human-only assumptions. Ensure audit logs capture initiation, approvals, beneficiaries, and authentication steps. In disputes, those artifacts become the difference between “this was a contained anomaly” and “this was foreseeable loss enabled by weak controls.”

Market Access as Compliance Blueprint

Securities markets offer a mature template for how regulators think about automated execution risk. The SEC’s Market Access Rule adopting release for Rule 15c3-5 requires broker-dealers with market access to establish, document, and maintain risk management controls and supervisory procedures designed to manage the financial, regulatory, and operational risks of that access. The SEC’s rule page summarizing the rule, including the release number and dates, is maintained on sec.gov. FINRA’s overview of market access echoes the same principle: automation is permissible, but it must be bounded by enforceable controls.

The analogy is not that every enterprise agent is now a broker-dealer system. The analogy is the compliance mindset. Market access regulation treats automated execution as something that demands pre-transaction controls, ongoing supervision, testing, and kill switches. That is the same governance grammar enterprises will increasingly need when agents can bind them to obligations and move funds, even outside regulated trading.

This lens also clarifies why purely contractual risk transfer is often insufficient. Market access regimes do not accept “the vendor made us do it” as a governance story. In broader commercial disputes, courts and regulators can apply a similar instinct: if you deployed a system into the stream of commerce, you were responsible for designing oversight commensurate with the risk you enabled.

For boards and auditors, the market-access vocabulary is useful because it is legible: controls, supervision, testing, escalation, shutdown authority, and documentation. Agentic systems fit naturally into that framework, and counsel can use it to move internal conversations from product excitement to risk ownership.

Vendor Stacks and Contract Firebreaks

Agentic transactions rarely involve a single vendor. They are typically a stack: a model provider, an orchestration layer, tool connectors, an identity and permissions system, and third-party platforms where the actual transaction occurs. In external disputes, liability often concentrates on the deploying enterprise because that is the party in privity with counterparties and the party that chose to authorize the system.

That reality turns vendor contracting into the primary battlefield for loss allocation. Vendors will often characterize the tool as configurable software whose outputs depend on customer settings and inputs, while enterprises will seek warranties around access control, audit logging, change management, and incident response when the system transacts unexpectedly. When the tool can accept third-party terms, a mismatch between what the business believes it delegated and what the system can actually do becomes the seed of future disputes.

Three contractual issues deserve special focus. First is scope enforcement: what the agent can do, what it cannot do, and what technical constraints enforce that distinction. Second is change control: who can modify prompts, policies, connectors, model versions, and tool permissions, with a clear audit trail of changes and approvals. Third is transactional loss allocation: if the agent triggers unauthorized purchases, accepts unfavorable terms, or routes mistaken payments, which party bears defense costs and remediation, and under what conditions.

Enterprises should also watch marketing claims. If a vendor sells “hands-free purchasing” or “autonomous execution” but disclaims responsibility for the predictable consequences of autonomy, that gap can create downstream friction with customers, regulators, and insurers. A defensible deployment is one where the contracts, policies, and technical controls tell the same story about how the system actually behaves.

A Counsel Playbook for Agentic Contracting

The near-term opportunity is not to avoid agents. It is to deploy them with a liability posture that is provable. Start with a scoping decision: which transactions may be automated end to end, which require a human gate at assent or payment, and which are prohibited. Tie that decision to the authority models your organization already uses for employees and procurement. If a human cannot bind the company to a five-year subscription without approvals, an agent should not be able to do it because it is fast.

Then build controls that look intentionally boring. Use least-privilege credentials. Whitelist counterparties and payees. Cap spend. Separate contracting accounts from general user accounts. Require explicit approval to add new payment recipients. Preserve audit logs that show what terms were presented and accepted, what tool calls were made, and which authorization path was used. In disputes, the absence of logs is often treated as the absence of governance.

Align external relationships with agent reality. If agents can initiate payments, confirm that bank security procedures, notice provisions, and authentication methods are appropriate for that use case, with counsel understanding the implications of UCC Article 4A’s allocation logic through resources like Cornell Law’s UCC Article 4A compilation and the authorization rule in UCC § 4A-202. If agents can accept online terms, constrain them to vetted templates and capture the exact version accepted, with awareness of assent risks illustrated by Nguyen.

Finally, plan for failure as a governance requirement. Monitoring should detect unusual agent behavior quickly, and escalation paths should allow a rapid pause, credential revocation, and evidence preservation. Treat transactional mistakes like security incidents: contain, investigate, notify where required, remediate, and document. In the agent era, “we responded responsibly once we knew” can be as important as “we tried to prevent it” when courts and regulators evaluate reasonableness.

Autonomous transacting is not a doctrinal void. UETA and E-SIGN already validate electronic agents as a formation mechanism. Payment law already allocates loss through defined procedures and timelines. Securities regulators already demand pre-transaction controls where automation can destabilize outcomes. The organizations that fare best will be the ones that treat agents as binders of obligations, not as clever assistants, and that engineer their deployments so responsibility is not only real, but provable.

Sources

• Bloomberg Law: “AI Standing Orders Proliferate as Federal Courts Forge Own Paths,” by Jessiah Hulle (Nov. 8, 2023)
• Code of Federal Regulations: 12 CFR Part 1005 Electronic Fund Transfers (Regulation E)
• Code of Federal Regulations: 12 CFR § 1005.11 Procedures for Resolving Errors
• FINRA: Market Access
• Consumer Financial Protection Bureau: Electronic Fund Transfers (Regulation E) (April 19, 2023)
• Legal Information Institute: Uniform Commercial Code Article 4A Funds Transfers
• Legal Information Institute: UCC § 4A-202 Authorized and Verified Payment Orders
• Justia: Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. Aug. 18, 2014)
• New York State Senate: State Technology Law Article 3 – Electronic Signatures and Records Act
• Securities and Exchange Commission: “Risk Management Controls for Brokers or Dealers With Market Access” (Nov. 3, 2010)
• Securities and Exchange Commission: “Risk Management Controls for Brokers or Dealers With Market Access” (Rule 15c3-5 overview page) (April 7, 2023)
• UNCITRAL: “UNCITRAL Model Law on Automated Contracting” (July 11, 2024)

This article was prepared for educational and informational purposes only. It does not constitute legal advice and should not be relied upon as such. All cases, regulations, and sources cited are publicly available through court filings and reputable media outlets. Readers should consult professional counsel for specific legal or compliance questions related to AI use.

See also: Recalibrating Competence: Updating Model Rule 1.1 for the Machine Era