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An All Clear for the Thumbs Up Emoji?

By Gurvinderjit Saranjit Singh

The recent Canadian case of South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKBB 116 raised the interesting and important question about the use of ‘emojis’ in signifying acceptance of a commercial contract.[1]

The case involved South West Terminal (SWT) purchasing a flax order from Achter Land (Achter). Mr Kent; the grain buyer for SWT had drafted a contract for Achter to sell SWT 86 metric tonnes of flax grain. Kent signed the agreement in ink, took a picture of it, and sent the picture to Mr Chris Achter with the message “please confirm flax contract” attached. Mr Achter replied with a thumbs up emoji. However, nothing was delivered when the due date came for SWT to receive the flax in November 2021. [2]

Achter claimed that Mr Achter’s thumbs up emoji did not amount to acceptance of the contract and was meant merely to confirm that he had received the picture of the contract from Mr Kent. The issue the courts faced was one concerning the basic tenet of a contract in law; the meeting of the minds. The question was whether the conduct of Mr Achter in sending the thumbs up emoji on behalf of Achter was such that a reasonable person would conclude that they had intended to be bound.[3]

The Court held that a reasonable person would conclude that the parties had reached a meeting of the minds and that the signature requirement was met by the usage of the thumbs up emoji by Mr Achter.[4] Interestingly, the Court relied on the dictionary definition of what amounts to an “emoji” and reference was also made to Section 18 of the Electronic Information and Documents Act 2000, which describes how “an action in electronic form” can demonstrate acceptance.[5]

This ruling emphasises and addresses several things:

1) Firstly, it is another reminder of how communication in the digital age is evolving and the importance of carefully considering the messages we communicate. It emphasises how important it is to communicate in a clear and unambiguous way when negotiating and concluding commercial contracts to ensure that all parties understand their contractual obligations. This prevents miscommunication and also alleviates the potential for disputes that could arise later.

2) Secondly, it answers the question whether the thumbs up emoji qualifies as a legally binding acceptance establishing a contract in law. This Canadian case highlights how crucial it is to acknowledge that contracts can be accepted electronically even when using seemingly modern methods like emojis, of course, context depending.

3) Thirdly, it provides a reminder that when determining whether a contract is valid, the parties’ subjective intentions are irrelevant. Instead, the parties’ intentions are evaluated objectively from the perspective of a reasonable man. So, it did not matter what Mr Achter thought the emoji conveyed (i.e., simply as a confirmation that he had received a picture of the flax contract from Mr Kent).

It is probably only a matter of time before similar cases surface in the UK given the growing reliance on technology and the evolving forms of modern communication in the commercial context. However, emojis have not yet been accepted by our courts as electronic signatures. But, businesses should take note that all digital communications, including emojis, can potentially have ‘unintended legal consequences’ if a court can be persuaded that it was reasonable to assume the message conveyed the sender’s consent or acceptance.

This case underscores that caution is essential: Xeets, texts, and emails can have legal ramifications, and it should never be assumed that because these forms of communication are informal, they cannot have contractual significance.

Since we are now aware that emoji contracting is possible, it is an easy hole to fall into if you’re not careful. So, beware and tread cautiously!

[1] South West Terminal Ltd v Achter Land and Cattle Ltd [2023] 2023 SKBB 116. [2] Ibid, [15]. [3] Ibid, [18]. [4] Ibid, [36]. [5] Electronic Information and Documents Act 2000, s 18.

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