572 words – 4 mins.
by Marina Abrosimov, Mann Lawyers LLP
Can the use of a “thumbs-up” emoji in a text message create legally binding obligations? Last summer’s decision by the Saskatchewan Court of King’s Bench, which made international headlines, signalled that it may.
Among other requirements, in order to have a legal contract, someone must make an offer and someone else must accept it.
In the case of South West Terminal Ltd. v. Achter Land & Cattle Ltd., 2023 SKKB 116, the court addressed the question of whether or not texting a “thumbs-up” emoji constituted acceptance of an offer.
The case: When a simple “thumbs up” will do
In this case, a representative of a grain and crop inputs company (the “Buyer”) had a telephone call with a representative of a farming corporation (the “Seller”) to discuss the potential purchase of flax. Following the call, the Buyer’s representative had a deferred delivery purchase contract prepared. He then signed the contract, took a photograph of it with his cell phone, and texted the photograph to the Seller’s representative, along with the text message: “Please confirm flax contract.”
The Seller’s representative texted back a “thumbs-up” emoji.
Months later, when delivery of the flax was due, the Seller failed to make the delivery to the Buyer. The Buyer then proceeded to sue the Seller for breach of contract.
The legal perspective – a cautionary tale
The court found that the Buyer and Seller had a long-standing business relationship and that the parties had a pattern of entering into deferred delivery purchase contracts through text messages.
On a number of occasions, the Buyer’s representative had sent a photograph of the contract that he had signed via text message and had asked the Seller’s representative to confirm the terms of the contract. Each time, the Seller’s representative had confirmed by texting back “Looks good”, “Ok”, or “Yup”. Each time, the Seller had proceeded to deliver on the contract.
With respect to the contract at issue, instead of such words of acceptance being texted, the Seller’s representative texted a “thumbs-up” emojiThe court was satisfied that the Seller’s representative approved the contract, as he had done on previous occasions, and found that the “thumbs-up” emoji was an action in electronic form that can be used to express acceptance.
The court added that the “thumbs-up” emoji originating from the unique cell phone of the Seller’s representative, which cell phone was used to receive the contract sent by the Buyer’s representative, met the signature requirement despite being a non-traditional manner of “signing” a document.
The court held that the emoji identified the signing individual (through his unique cell phone number) and conveyed the acceptance of the contract. As a result, a valid, enforceable contract was found to exist, and the Seller was ordered to pay over $82,000 in damages plus interest and legal costs.
This case highlights the necessity to be mindful when texting or otherwise informally expressing consent. A casual sign of approval, like an emoji, may lead to the creation of legally-binding obligations.
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