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Most service providers have Terms of Service that people or entities need to agree to before legally using their services. On another question I had, arguments were made that you needed to be a person to agree to the TOS. But this doesn't seem right as corporations can agree to TOS and they are not people. I figured it would explicitly fall under the exact verbiage of the TOS on who could or could not agree to the contract.

For example, here is a section from the cloud service provider Digital Ocean's TOS:

Whom does this TOS apply to?

When we refer to “DigitalOcean” or we use pronouns like “we”, “us” or “our”, we are referring to DigitalOcean, LLC as well as its parents, affiliates and subsidiaries.

When we refer to the “User”, we are talking about you, and we will also use words like “you” and “your” to refer to you. Who “you” are can get more complicated if you are using our services on behalf of a company, organization, or other entity. In that case, you are representing to us that you have the authority to bind your company, organization, other entity to this TOS and that you agree to be legally bound by this TOS on behalf of such entity (and “User”, “you”, and “your” then refer to such entity). If you aren’t sure what this means or whether you are authorized to bind your company, organization, or entity to this contract, you should ask others in your organization to get clarification about authority.

They mention "or other entity". Is a computer program considered an entity that can agree to terms of service?

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    "But this doesn't seem right as corporations can agree to TOS and they are not people." I think you've been misled. Lookup the definition of corporation and you'll find that's exactly what they are. e.g. "a company or group of people authorized to act as a single entity (legally a person) and recognized as such in law." Mar 30, 2023 at 17:14

2 Answers 2

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Other Entities means Legal Person

The reason for the term "legal person" is that some legal persons are not people: companies and corporations are "persons" legally speaking (they can legally do most of the things an ordinary person can do), but they are not people in a literal sense (human beings)

This is very similar to Corporate Personhood.

Among the recognized items for legal personhood are usually groups of people, such as a corporation, states or countries, but also churches and temples. In rare cases, Temple buildings and at least two rivers are legal persons. All non-natural legal persons have in common, that they are represented by natural persons - aka humans.

A computer program is not represented by a natural person. A natural person (possibly representing a legal person) can use a program to agree to a contract, but a program agreeing on its own is not following the basic principle of a contract, which requires a meeting of the minds on the offer. The computer program becomes the tool that facilitates the contract, for example by offering a prewritten contract to people that want to use the service.

Since the contract is usually offered by the service providers as is with no renegotiation allowed, those contracts can only be accepted or not - their side of the bargain is offered and then facilitated by the computer of the service provider - we have an invitation to treat. If a natural or legal person is able to agree (through its representative), the contract becomes binding.

If you are not a legal person - so neither a human nor one of the recognized categories - you can not agree to the TOS, the contract is void.

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    In 2017, New Zealand granted Legal Personhood to the Whanganui River. From bbc.com/travel/article/…
    – Criggie
    Mar 30, 2023 at 1:15
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    @Criggie that is one of the two rivers, the other is the Ganges
    – Trish
    Mar 30, 2023 at 7:10
  • My shorter version of this was going to be: "corporations ... are not people" - Oh yes they are! Or more precisely, they are "legal persons". Mar 30, 2023 at 9:29
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    So basically using a program to agree to a contract is like using a pen to sign a contract: it is not the pen which agreed to it.
    – vsz
    Mar 30, 2023 at 9:58
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    @user253751 It should be considered a frivolous argument to claim that someone agreed to something when you know it is much more likely that they did not do so. But alas, courts have not been reasonable about this. Mar 31, 2023 at 1:02
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It can’t consent for itself, but it can consent on your behalf

The concept we are interested in is that of the legal person. A legal person can, among other things, enter into contracts which is what Terms of Service are. Things that aren’t legal persons can’t.

There are two types of legal persons: natural persons (i.e. human beings) and judicial persons (i.e. things defined by law as legal persons that aren’t human beings). You fall into the first category, a company falls into the second. A computer program falls into neither.

However, if you or your company cause a computer program to accept a contract, then you or your company has accepted. The computer program hasn’t. For example, when you and Stack Exchange agreed to be bound by this site’s ToS, you did it in person (probably), SE did it by computer program.

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    Your example with StackExchange is clear-cut. Here is a less clear-cut example: I write a program to crawl the web. You write a website in which some data is published, but you hide the data behind a "You must accept the ToS" button. My webcrawling program clicks your button without me ever knowing about that button, and downloads the data. Did I accept your contract?
    – Stef
    Mar 29, 2023 at 15:53
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    @Stef - That would likely depend on whether you programmed the web crawler to click on "accept" buttons or whether it's just blindly following every link it can find. I'd expect the answer would be "yes" for the first one and "no" for the second.
    – bta
    Mar 29, 2023 at 18:34
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    @Stef good question - ask it
    – Dale M
    Mar 29, 2023 at 21:03
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    Find me a legal case where a runaway computer program accepted a contract.
    – Joshua
    Mar 29, 2023 at 21:57
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    @bta It would only a little bit. If you programmed it to click on "accept" buttons, you did not in fact agree to terms but did intentionally mislead the other party into thinking you did. That is a situation courts know how to handle but they will not treat you as having accepted the contract. (The way they handle it will almost certainly not be to your liking, of course, since you intended to get the benefit of the contract by tricking the other party into thinking you were bound by it when you intended not to be bound. That's almost the definition of bad faith.) Mar 31, 2023 at 1:05

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