Written by Richard Wee and Fatin Ismail
In recent years, the usage of electronic communication has become more rampant especially in the process of contractual negotiations.
This begs the question on the validity of emojis in negotiations that lead up to the formation of a contract, especially for the most crucial part of offer and acceptance.
In the Canadian King’s Bench case of South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKKB 116, this was the exact issue that arose; whether “👍🏻” constitutes a valid acceptance to a contract?
The brief facts of the case are the Plaintiff had agreed to purchase and the Defendant had agreed to deliver flax, a type of fibre crop. However, no flax was delivered to the Plaintiff. The Defendant alleged, amongst others, that no contract had been entered.
The negotiations for the contract had been entered into by way of text message between representatives of both the Plaintiff and Defendant. The Plaintiff’s representative had signed the contract, took a picture of it, and sent a picture of the same to the Defendant’s representative with the text message “Please confirm flax contract”. To which, the Defendant’s representative responded with a simple “👍🏻”.
The judge that presided over the case, Keene J, had ruled that there was indeed a binding contract between parties and that the thumbs up emoji could be used to express acceptance of an offer. Another factor in Keene J arriving at this ruling was that the the manner in which the contract had been concluded was similar to previously negotiated and concluded contracts.
This marks an interesting development in the law as the manner in which acceptance can be made can now include emojis in text messages.
The full text case can be accessed here.
Published on 29 February 2024