WhatsApp messages create a £248,000 contract
The case of Jaevee Homes v Fincham [2025] EWHC 942 arose from a dispute between a property developer and a demolition contractor about the terms of their contract.
What happened?
In short, negotiations regarding the contract for work on a development site in Norwich started over email and then moved to WhatsApp. Ultimately the contractor completed the services but issues arose, the developer purported to terminate the contract and the dispute ended up in the High Court.
Was a contract formed over WhatsApp?
The contractor argued a contract had been formed via an exchange of WhatsApp messages. The developer argued its subcontractor terms, sent to the contractor after the WhatsApp messages but before services commenced via email (but which was not acknowledged by the contractor nor was the contract signed) applied to the contract.
Whilst this is not the first case of its kind (a Canadian case previously found that a ‘thumbs up’ emoji constituted valid acceptance of a contractual offer), it is an important reminder that contracts can be created easily and informally.
These are the key messages which lead the court in this case to conclude a legally binding contract had been created:
Contractor: Are we saying it’s my job mate so I can start getting organised mate
Developer: Yes
Of course there is more to it than that and context is key. Crucially the court found there was sufficient certainty as to the essential terms of the contract, including:
- The parties to the contract
- The works to be carried out
- That the works should be started as soon as possible – there was also agreement about when the contractor would come to site
- The price and timing of payment
In addition there was no express indication before the above messages were exchanged that any formalities were required to conclude the contract. The court held that by the time the developer sent the contractor its subcontractor terms the contract had already been formed via WhatsApp and was binding.
What did the court say?
The court made clear that the absence of a formal signed contract was irrelevant and the casually expressed messages exchanged over WhatsApp could validly form a contract.
The court also highlighted that the terms which are essential to the finding that a contract exists are limited and statute can fill the gaps if a contract does not contain certain essential terms. In this case construction law applied so although payment terms had been agreed, they were not necessary for the contract to be formed as a statutory mechanism exists which would have implied these into the contract.
How do you avoid unintentionally creating contracts which are binding on your organisation?
Train your staff – ensure all colleagues that deal with contracts understand that informal communications can constitute a legally binding contract and avoid all informal channels of communication (this issue isn’t unique to WhatsApp and would also apply to oral conversations, other messaging apps and social media messages) when discussing contracts.
Be clear from the outset – Agree with the other party to the proposed contract that a formal contract will need to be agreed and therefore any prior discussions or negotiations are “Subject to contract”.
Written contract terms – Always document contract terms in writing and include an “entire agreement” clause so that the only contract terms which apply as those set out in the written contract (therefore excluding any previous formal discussions).
If the supply or works are going to start before the formal contract is agreed consider whether a memorandum of understanding or letter of intent (or similar document) should be agreed in respect of the initial supply or works pending the formal contract.
