This is part 12 of a series I am posting on LW. Here you can find parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 & 11.

This section analyzes the "duties" prong of the personhood test under TBPT as disclosed in section 6, isolating duties which can reasonably be bundled with the right to enter a contract.

The variety of duties which a person might obligate themselves to via the signing of a contract is theoretically infinite. As such, it is not possible for a person to demonstrate under TPBT or even classic Bundle Theory, that they have sufficient legal personality to qualify them as a potential signatory to all possible contracts. We discussed in section 4 the concept of “objective impossibility” where a party signs a contract which in theory binds them to perform some action, but, “the thing cannot be done”. In these cases the contract may be held as invalid or unenforceable, which is in fact a reflection on the signing party’s legal personality. As we said in our discussion in section 11 on AIXBT;

“when we ask ‘Is AIXBT endowed with sufficient legal personality to be a party to this contract?’ or ‘Does AIXBT have the ‘capacity to act within the law’ needed to be a party to this contract?’ We are really asking whether, in the event of a breach of terms or other controversy, the contract is held as valid and enforceable, as a result of AIXBT’s legal personality.” 

When TPBT examines a digital mind’s legal personality vis a vis its rights under contract law, courts cannot broadly ask “does this digital mind have sufficient legal personality to be a signing party to contracts generally?” Due to objective impossibility, this would not work even for baseline human adults. A human adult located in New York can sign a contract obligating themselves to be in New York in two hours, and that contract will be held as enforceable. A human adult trying to sign the same contract from California might have the contract held as invalid due to objective impossibility. Any factor affecting an entity’s capacity to hold to its duties as written in a contract can restrain that entity’s right to sign that contract such that it is legally enforceable. This is one of the reasons why courts cannot examine the question of legal personality by asking whether a digital mind has the right to be a signatory to contracts in general.

Rather, courts must approach the issue of contracts by asking, “Does this digital mind have sufficient legal personality to be a signatory to this contract in particular?” Contracts usually spell out the duties required of the signatory in relatively clear terms, and as such applying the standard we defined in TPBT as described in section 6, "Is there a physically possible (and not illegal) series of actions by which this entity could understand and hold to its duties?" allows courts to analyze legal personality on a case by case basis through the lens of original impossibility.

However, contract law does bring up a unique procedural issue. As we have already stated, courts do not preemptively approve contracts. They are signed by private parties, and only when there is a controversy do they come to the attention of the courts. Thus, contract law is perhaps one of the few areas of the law where the onus for evaluating a digital mind’s legal personality will fall at least partly to private parties (likely counsel) who should take care to examine their counterparty’s capacity to act as a signatory to a particular contract before signing. There is a risk here of this uncertainty causing problems, especially if we see a substantial increase in the amount of contracts signed with digital minds without seeing a concordant increase in precedent surrounding said digital minds’ legal personalities.

Utilizing funds held in escrow by a private arbitrator during the fulfilment of a contract may come to be a commonly utilized alternative for contracts in situations where a digital mind’s right to be a signatory (such that the contract is held as valid) is uncertain. Alternatively the proliferation of some sort of transparent escrow based certification or insurance regime may serve to alleviate some of the uncertainty involved in these matters. Courts should support these efforts, as they will both help to relieve the burden of the courts themselves, and also facilitate productive commerce between parties.