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Canadian Judge rules that the “thumbs up” emoji led to a binding and enforceable contract

Online discussions have been circulating recently  following a Judge’s ruling that a thumbs-up emoji led to a binding contract in the Canadian case of South West Terminal Ltd. v Achter Land & Cattle Ltd, 2023 SKKB 116 (CanLII).

The facts of the case are that the Claimant, South West Terminal Ltd,  ordered 87 tonnes of flax from the Defendant, Achter Land & Cattle Ltd for a price of $669.26 per tonne which was to be delivered in November 2021. The Claimant drafted and signed a contract to this effect, which was then sent to the Defendant  by text with the message “Please confirm flax contract”. The Defendant subsequently responded by text with  a “thumbs-up” emoji 👍.  The Claimant interpreted this exchange as the Defendant entering into the contract but the Defendant did not deliver the flax by the stipulated date. The Defendant’s position was that the thumbs-up emoji only indicated that they had received the message, not that they had agreed to enter into contract with the Claimant to deliver the flax. The price of the flax subsequently rose and the Claimant brought a claim in damages.

The question for the court to consider was whether this exchange led to an enforceable contract. The Judge considered that the test to be applied was what the “reasonable bystander” would consider of the exchange.

On the balance of probabilities, it was found that the Defendant accepted the contract, which he had done before in previous dealings, except in this particular case he had used the thumbs up emoji. In the Judge’s opinion, when considering all of the circumstances, that use of the emoji meant approval of the flax contract and not simply that they had received the contract and were going to think about it. The Judge considered that in his view, a reasonable bystander knowing all the background would come to the objective understanding that the parties had reached consensus  just like they had done on numerous other occasions previously.

Additionally the Judge cited the definition of the thumbs-up emoji found on Dictionary.com, which states “it is used to express assent, approval or encouragement in digital communications, especially in western cultures”. As such the court held that the text message exchanges did lead to a binding contract and as such the contract was breached by not delivering the flax on the delivery date.  The Judge did acknowledge that an emoji was a non-traditional means to “sign” a document but nevertheless concluded that under the specific circumstances this was a valid way to convey the two purposes of a “signature” – to identify the signatory by way of the Claimant sending the contract  and to convey the Defendant’s acceptance of the contract by inserting the thumb-up emoji.

No doubt this judgment will present new challenges for legal relationships  going forward given the ever changing technological environment and modern communications.  The Defendant’s legal counsel suggested that allowing a thumbs-up emoji to signify acceptance would “open up the flood gates to other emoji’s carrying legal weight”.  For now we will watch this space… 👍

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