Emojination – Creating clever conversations and phrases by talking with emoji pictures in a text message instead of using words (UrbanDictionary.com)
A Saskatchewan court recently ruled that the use of a “thumbs-up”👍emoji can indicate acceptance of a contract. The ruling has attracted significant media attention and should change the way we approach electronic communications.
The basic rules governing the formation of contracts are as old as the contract itself. At the heart of the formation of a contract is the requirement for consensus ad idem or a “meeting of the minds” – there must be clear offer and acceptance. These concepts serve courts, lawyers, and jurists striving for certainty and predictability. However, in a world of constantly evolving technology and electronic communications, basic notions such as offer and acceptance are also evolving and may present new challenges and risks for businesses. The increasingly ubiquitous use of texts and emails, with their abbreviated nomenclature consisting of acronyms and emojis, and the increased speed of modern communications creates novel questions for businesses and for the interpretation of contracts. A recent case of a Saskatchewan Court underlines the importance of not getting too emojinal when communicating with business associates.
The decision of Justice T.J. Keene of the King’s Bench of Saskatchewan has taken the legal and business world by storm with prominent coverage by major news outlets in Canada and abroad. On June 8, 2023, in South West Terminal Ltd. v. Achter Land & Cattle Ltd., 2023 SKKB 116, Justice Keene granted a summary judgment decision in favour of the plaintiff, concluding that a valid contract for the delivery of flax was formed when a representative of the defendant responded to the contract offer with a text containing a thumbs-up👍emoji. He awarded the plaintiff over $82,000 in damages plus costs.
Background
The facts of the case were not in dispute. The parties agreed that on March 26, 2021, a representative of the plaintiff sent a representative of the defendant a text message with proposed pricing terms for the supply of flax by the defendant, after which the representatives of the plaintiff and the defendant had a telephone conversation. Following this call, the plaintiff had a contract prepared for the supply of 86 metric tonnes of flax at a price of $17 per bushel ($669.26 per tonne). The representative of the plaintiff signed the contract and took a photo of it using his mobile phone. Then he texted the photo of the signed contract to the representative of the defendant along with the message, “Please confirm flax contract.” The defendant’s representative responded by texting back with a👍emoji. The defendant did not deliver the flax and the plaintiff sued for breach of contract.
The central issue before the court was whether there was a meeting of the minds resulting in a valid contract between the parties and specifically whether the👍emoji constituted acceptance of the proposed contract.
Was there a valid contract?
The plaintiff argued that the use of the👍emoji indicated acceptance of the flax contract in line with previous dealings. The defendant contended it was only to indicate receipt of the contract and nothing more. Justice Keene cited the Supreme Court of Canada’s decision in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22, which lays out the test for determining whether offer and acceptance has occurred, namely whether a reasonable person would conclude that the parties have indicated their intention to contract (i.e., the test is objective, not subjective based on either party beliefs), and the analysis should consider surrounding circumstances, including the relationship of the parties and past dealings.
Justice Keene noted that the plaintiff and defendant companies had a longstanding business relationship and had entered into several previous contracts by way of text for the supply of durum wheat. He noted specifically that on three previous occasions in 2020, the plaintiff’s representative had texted photos of signed supply contracts with the words “Please confirm terms of durum contract” and the defendant’s representative had responded on each occasion with texts stating, “Looks good”, “Ok”, and “Yup”. Following each of these text exchanges, the defendant had delivered on the contract without issue.
Justice Keene found that these past dealings indicated an “uncontested pattern” of the parties entering into mutually understood valid and binding contracts and that the use of a👍emoji by the representative of the defendant was “very similar” to his responses to the previous contracts. Justice Keene also noted that this emoji is “commonly used” by people today to indicate their assent or approval, and that in fact this is what he himself understood it to mean. He further noted that the defendant’s subjective understanding of what the👍emoji meant did not matter; it mattered only that “a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad idem – a meeting of the minds – just like they had done on numerous other occasions”.
Importantly, Justice Keene found that the👍emoji was an “action in electronic form” that may be used to express acceptance of a contract under The Electronic Information and Documents Act, 2000 (Saskatchewan) and that an actual signature is not necessary. He concluded that “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” – to identify the signator ([the defendant] using his unique cell phone number) and … to convey [the defendant’s] acceptance of the flax contract.”
Risks for businesses
What does this decision mean for today’s businesses? First, it serves as an important reminder that contracts can be entered into electronically, even informally or casually, by way of texts and symbols that are normally reserved for more personal messaging. If you are a business representative responsible for the management of contracts, especially employment contracts or high-value procurement, supply, or distribution contracts, you need to be especially mindful of how you communicate. You should consider carefully whether you should be dealing with business or employment matters by way of text or SMS messaging.
Modern technology allows us to work at high-speed. Every day we send numerous electronic communications, often very quickly, including texts and emails to employees, colleagues, suppliers, and customers. Often, we use shortened phrases, slang, acronyms, and emojis to convey meaning. As we know, speed can kill. So, as we move at the speed of business, we need to take great care in how we communicate, think critically before sending and responding to electronic messages, and ensure we proofread emails and texts before we press send so that we are clear in what we are communicating – ask yourself, would a reasonable bystander aware of the context understand my message the same way I do?
Justice Keene noted the defendant’s argument that the use of an emoji to signify acceptance would open the floodgates to problematic cases requiring interpretations of emojis, including the fist-pump 👊emoji and the handshake🤝emoji. He observed that “this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like.”
Are you ready?
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