Back in January 2023 in our blog post, “How do I know if I have formed a contract?”, we discussed how emojis can indicate an intention to enter into a contract. Briefly, we discussed the case in Israel called Dahan v Haim, where a judge ruled that a prospective tenant sending text messages containing several emojis including a smiling emoji “😊”, dancing emoji “💃”, and a champagne emoji “🥂”, indicated an intention to rent from a landlord. Although the emojis did not create a binding contract between the parties they did signify an intention to contract.
The case of South West Terminal Ltd. v Achter Land, 2023 SKKB 116
As of June 8, 2023, there have been further developments to the issue of an emojis use and contract formulation. Closer to home, in Saskatchewan, the Court of the King’s Bench has recently decided that the use of an emoji can amount to a contractual agreement between parties. The case of South West Terminal Ltd. V Achter Land, involves a farm supply company and a farming corporation, whom were looking to negotiate a contract. South West Terminal (“SWT”) and Achter Land’s representative agents had an established relationship in which they would communicate acceptance of their contracts through text messages and phone calls. The typical process of their negotiations would be to discuss the terms on the phone, the SWT representative would then draft the contract, sign it, and send it to the Achter representative for review and to accept. The Achter representative on at least 3 separate occasions would write back either “looks good”, “ok” or “yup” and would then proceed to fulfil the contract. On the incident that led to the case the Achter representative responded with a “👍” emoji. SWT relied on the “👍” and Achter failed to fulfil the contract, at which point SWT subsequently sued.
The Court concluded that the thumbs-up emoji had met the signature requirements of acceptance and therefore the contract had been breached by Achter. As a result, Achter was responsible in paying SWT $82,000.00. According to Dictionary.com, the definition of the thumbs-up emoji is generally thought to be of approval or acceptance and the Court saw this as proof enough. Although the use of a thumbs-up emoji is seen to be outside the traditional realm of acceptance the Court said that the courts must be able to keep up with the everchanging reality of Canadian society and this case was a need for the Courts to keep up with that shift. The Court in its reasoning also relied on the past contractual relationships informal conduct of the parties. The Court reasoned the informal nature of the agreements between the parties left it open for the emoji to constitute acceptance.
What are the implications of this decision?
Although this is a Saskatchewan decision, it has potential implications within other jurisdictions across Canada. This case highlights the possible ramifications of miscommunication and misinterpretation in electronic messaging. Clarity is important in contractual formation and negotiations. It is important, from an evidentiary standpoint, for the parties to have clear written communication between one another to ensure there is a clear and conceptual understanding of each parties’ obligations to the contract. Emojis often offer context or are used to clarify meanings in a message, but as this case highlights, they should be used sparingly and with hesitation to avoid unintended outcomes. Achter likely could have avoided this suit altogether if he responded with “will review later” rather than the thumbs up emoji.
This case also serves as a reminder that a party’s subjective intentions are irrelevant in contractual negotiations. Instead, what is relevant in the Courts eyes is the objective conduct surrounding the party. The Court will look towards if a reasonable person within the same circumstances would believe that the acceptance was genuine.
This case also highlights that acceptance of a contract can come in traditional ways and non-traditional ways. Traditional acceptance of a contract is typically a clear written signature. Non-traditional acceptance could be an emoji, a social media message, or possibly even a GIF. The decision shows that the courts are willing to adapt to technology and advancements in Canadian society and we should be mindful of our newfound methods of communication.
Best practices
- It is best to leave emojis outside contractual formation.
- It is best to use clear written communication to avoid ambiguity and misinterpretation.
- Be mindful of other non-traditional methods of signatures such as text and social media messages and GIFs.
- Always reconfirm oral agreements in writing.
This case does not signify that a thumbs-up emoji will always constitute a contract. Instead, the case highlights that a contract could be considered accepted though the use of an emoji, being dependent on extenuating factors such as the past conduct of the parties. It is clear then one should be mindful of using emojis to communicate something best left for written text. As the old saying goes, “a picture is worth a thousand words” and different people might interpret different meanings from a picture.
Should you have any questions about general contract formation, or more specific contract-related issues, please reach out to Michael Weinberger or a member of the Siskinds Business Law Group.
Special thanks to Kiel Baker, summer student, who helped write this article.