Contracting by Emoji – Judge Rules Thumbs up Emoji Can Seal a Deal!


Contracting by Emoji – Judge Rules Thumbs up Emoji Can Seal a Deal!

It is Homer Stille Cummings1, who is credited with the phrase, ‘the law is a living thing’. He saw it as a growing force that can be adapted to serve the needs of the hour. Like clothes, the law should be made to fit people.2 What this means is that the law must, of necessity, adapt itself. It cannot lay still and must therefore adapt to the changing social and technological
conditions of the day.

This was the position taken by a Canadian Court in the Province of Saskatchewan that a ‘thumbs up’ (👍) emoji is just as valid as a signature3 arguing that it is high time that the Courts adapted to the ‘new reality’ of how people communicate.
The facts of the case are that Mr. Milkeborough, a grain buyer from Southwest Terminal Ltd (SWT), sent a text message in March 2021 to several grain producers indicating that he wanted to buy flax. After sending the message, Mr. Mikleborough received a call from Mr. Achter, a grain producer from Achter Land & Cattle Limited (ALC) and both parties agreed that ALC would sell SWT 87 metric tonnes of flax with delivery expected to happen in
November, 2021. Consequently, Mr. Milkeborough, drafted and signed a contract as agreed, affixed his photograph, and then sent the contract to Mr. Achter via text message which read: ‘please
confirm flax contract’. Mr. Achter, in response to the text message sent (👍), which Mr. Milkeborough interpreted as acceptance of the contract.
However, in November, 2021, Mr. Achter did not deliver the grain. Consequently, Mr. Milkeborough sued for breach of contract. The argument by Mr. Achter was that the thumbs
up emoji did not signify acceptance of the contract but that he had confirmed receipt of the same. It was also his argument that he had not received the entire contract from Mr. Milkeborough which he expected would be sent through fax or email.
1 55th United States Attorney General
2 Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) v National Land Commission & 2 others [2017] eKLR
3 South West Terminal Ltd v Achter Land & Cattle [2023] SKKB 116

The Court rejected Mr. Achter’s argument by analyzing the definition of the thumbs up emoji by which states: ‘a thumbs up emoji is used to express assent, approval, or encouragement in digital communications…’ indicating that “(👍) could be used to imply positive acknowledgment when used’. In addition, the Court relied on past communications where both parties had previously been engaged in contracts of flax with Mr. Achter responding through short text messages by using words like ‘looks good’, ‘ok’ and ‘yup’ to confirm acceptance. For these reasons, the Court held that Mr. Achter had accepted the terms of the contract only that regarding the instant flax agreement, he had used (👍) which meant
that the contract had been validly entered into considering the existing consensus ad idem (meeting of the minds) between the two parties. Ultimately, Mr. Achter was ordered to pay SWT $82, 200.21 for damages plus interest for failing to deliver the flax.

B.ABC of Contract formation
A contract is an agreement between two or more parties that create mutual obligations that are enforceable by the law. The ingredients of a valid contract are offer, acceptance, consideration, and the mutual intent to be bound. We discuss the four here below in brief. An offer is an expression of willingness to contract on the specified terms without further negotiation, so that it requires only acceptance for a binding agreement to be formed​4. Acceptance is what turns a specific offer, made with the intention to be bound, into an agreement. To constitute an acceptance, the recipient of the offer must make unequivocal assent in response to and must exactly match the terms of the offer and the matching
acceptance must be communicated to the party making the offer.​5 Consideration is a promise of something of value given to a person making the offer in exchange of something of value by the recipient of the offer. Simply put, anything of value promised by one party to the other when making a contract can be considered as ‘consideration’. Mutual intent to be bound means the common intention of the parties to enter into legal obligations, mutually communicated, either expressly or impliedly.​

C.Unintended contracting.
Going by the facts of the Achter case, and taking into consideration the above ingredients, in a situation where the recipient of the offer accepts an offer with an emoji though only intends to convey a friendly gesture short of acceptance, the offeree bears the risk of unintended contracting if the offeror reasonably accepts the emoji as acceptance of the offer. In such a case, a contract will be considered to have been entered into whether the offeree accepts it or not.

D.Significance of the Achter Case
4 Contract Law by Jill Poole, 10th Edition
5 Ibid.
6 Rose and Frank Co. vs. J R Crompton & Bros Ltd (1923) 2 KB 293
7 IBM Corp. v. Johnson, 629 F. Supp. 2d 321 (S.D.N.Y. 2009); Trademark Props., Inc. v. A&E TV Networks, 422 Fed. Appx. 199 (4th Cir. 2011).

What the above judgment tells us is that the days when emojis were used to communicate for fun are long gone. Further, that days when signing of contracts was a ceremony complete with an elaborate signing affair and a formal seal to authenticate a contract are now past. Indeed, based on the Achter case, it is evident that the common law of contract has evolved to meet the technology of the day. Though many parties still enter into contracts through the old-fashioned way of pen and paper, we now have modern contracts saved on cloud which can be easily accessed, amended and signed via electronic signatures by two or more contracting parties from different parts of the globe who have never met. In addition, the Achter case confirms that the acceptance of contracts has now adopted modern technological means of communication, including emojis. There are more than 2,823 emojis set by the Unicode Consortium.​8 It would therefore be naïve to imagine that
emojis are only being used for social communications. Times have changed as emojis are now being incorporated in business transactions considering about 95% of the online population send over 10 billion emojis every day.​

The main key take away from the Achter case is that communication through emojis can now lead to unintended legal consequences. It is therefore important for parties to first understand the meaning and significance of emojis before using them when contracting. The case also shows the necessity of parties being clear when communicating the terms and conditions when engaging in business transactions and avoid the casual use of emojis which can be difficult to understand absent supporting text.

Achter is arguably the first case that has ruled that emojis can be used to signify acceptance of a contract. Cananda being a common law country, it is expected that other common law countries are likely to follow suit. However, to avoid being caught up, parties are well advised to check out the meaning of emojis before using them in any communication that may have contractual implications. It is also expected that in determining such matters, what Courts will look at is the context of the emoji to get its true meaning.

Disclaimer: This article is not a legal opinion but is meant for general understanding of the
topic. For legal advice, please contact the authors through the emails indicated against their
Leslie Y. Garfield Tenzer & Ashley Cangro, An Emoji Legal Dictionary, 83 U. Pitt. L. Rev. Online 1 (2022).

Daniel Musyoka - [email protected] , Karen Muthee - [email protected]