News & Events
In his latest article, Mike Wilson, partner in our Litigation and Dispute Resolution team reports on a recent Canadian case in which the court ruled that a simple thumbs-up emoji can create a binding contractual agreement.
In a case before the Court of King’s Bench (the equivalent to our High Court) in the province of Saskatchewan, Kent Mickleborough, a grain buyer, sent a text message to a number of prospective sellers looking to buy 86 tonnes of flax at a price of C$17 per bushel. Following a conversation between them, Mickleborough texted a picture of a contract to deliver the flax to farmer, Chris Achter, asking him to “please confirm flax contract“. Achter responded with a ‘thumbs-up’ emoji but then failed to deliver the flax. The court held that a 👍 emoji is a non-traditional but nevertheless valid means of concluding a contract and ordered Achter to pay C$82,000 for breach of contract. The thumbs-up emoji was seen as a symbol of agreement and acceptance.
In English law, a contract is formed when there is an agreement between two or more parties, with the intention to create legal relations, and supported by consideration. The formation of a contract is a vital aspect of commercial and everyday interactions, as it defines the rights and obligations of the parties.
Firstly, there must be a clear offer made by one party to another. An offer is a proposal indicating a willingness to enter into a contract on specific terms. It must be communicated to the other party, orally or in writing, and with the intention that it can be accepted.
Once an offer has been made, the offeree may accept it. Acceptance is crucial as it signifies the agreement to the terms set out in the offer. It must mirror the terms of the offer, without any alterations or additional conditions. Moreover, acceptance must be communicated to the offeror.
In this case the sending of a ‘thumbs-up’ emoji was held to constitute such acceptance. The Judge said, “This court readily acknowledges that a 👍 emoji is a non-traditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature’”. He also dismissed submissions that allowing the thumbs-up emoji to signify acceptance “would open up the flood gates” to new interpretations of other emojis, including the ‘fist bump’ and ‘handshake’.
There are some additional requirements for the formation of an enforceable agreement under English law. For a contract to be legally binding, it must also be supported by consideration. Consideration refers to something of value that is exchanged between the parties as part of the agreement. It can take the form of money, goods, or services, and is necessary to show that each party has given something of benefit.
An intention to create legal relations is also essential. In general, it is presumed that business or commercial agreements are intended to be legally enforceable, while social or casual conversations may lack the necessary intention and not therefore create a legally binding contract.
Whilst decisions of the Canadian courts do not create any binding legal precedent here, and the enforceability of a contract formed by emoji is yet to be tested before the English courts, the underlying law is similar and the decision in this case illustrates how courts are increasingly faced with interpreting communications in the context of emerging digital and technological advancement.
As technology continues to advance and forms of communication evolve, the courts are having to adapt traditional legal principles to keep pace and it will be interesting to see how the courts here navigate these issues and interpret the use of the 👍 and other emojis in contract and other cases.
The law surrounding emojis is not yet well established and is always advisable to seek legal advice when entering into contracts, to prevent potential problems and disputes in the future.