Contract by Emoji?

By Fiona Ong - Shawe Rosental LLP

October 23, 2023

Apparently, emojis have become such an accepted means of communication that a Canadian court found thumbs-up to create an enforceable contract for $82,000 (plus interest and costs)!! 

In South West Terminal Ltd. v. Achter Land & Cattle Ltd. , a grain company (SWT) purchased grain from a farming corporation (Achter) for almost a decade through a series of written contracts. In 2021, SWT’s buyer sent a text message to various grain producers with a price of $17 per bushel (which apparently translates to $669.26 per ton(ne) – those fancy Canadians add the extra “ne”). Achter responded, and following a telephone call between the buyer and Achter, the buyer prepared a contract for Achter to sell 86 metric tonnes of flax to SWT at $669.26 per tonne. The buyer took a picture of the contract with his phone and texted it to Achter’s owner (Chris Achter) with the message, “Please confirm flax contract.” And Achter responded with a thumbs-up emoji.

But Achter did not deliver the flax, and SWT sued them for breach of contract. In defense, Achter argued that no valid contract existed – that he was just acknowledging receipt of the contract, and not agreement to the contract. But the Canadian court disagreed. It noted that the parties had previously executed contracts by some pretty casual text messages (although not by emoji).

•    In July 2020, the buyer took a photo of a contract and texted it with, “Please confirm terms of durum [wheat] contract.” Achter responded, “Looks good.” The durum wheat was delivered.
•    In September 2020, the buyer again took a photo of a contract and texted it with, “Please confirm terms of durum contract.” This time Achter responded “OK.” The durum wheat was delivered.
•    In October 2020, once again the buyer took a photo of a contract and texted it with, “Please confirm terms of durum contract.” And Achter responded with just “Yup.” And the durum wheat was delivered.

So I guess it’s not really much of a stretch to move from these court-described “curt” words to the thumbs-up. The court (a self-proclaimed “latecomer to the world of technology”) observed that the thumbs-up emoji is defined in Dictionary.com online “to express assent, approval or encouragement in digital communications, especially in western cultures.” And based on the past few contracts, the court found that it was reasonable to believe that Achter agreed to the contract – just as he did before, except this time he used the emoji instead of “Yup.”

Achter also argued that allowing an electronic thumbs-up  to replace a signature on a contract would open the floodgates for cases to interpret various emojis. Characterizing this a a sort of public policy argument, the court acknowledged the “novel” nature of the case, but, “nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage – 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.”

So, would U.S. courts find thumbs-up to create an enforceable contract? Now, whether or not an enforceable contract exists is determined by state law. Generally, however, there are certain basic requirements for an enforceable contract in the U.S., including (as relevant here and like Canada), a valid “offer” and “acceptance” of that offer. More specifically, there must be a “meeting of the minds” with regard to the contract, meaning that both parties understand the essential terms of what is being offered and accepted.

(In case you’re wondering, the other elements are: “consideration,” meaning that each party is giving something of value; and “legality,” because courts will not enforce an illegal agreement. Sometimes courts also throw “capacity” in there, because a party to the contract needs to be able to understand what they are agreeing to.)

Now, arguably, the intended meaning of an emoji could be ambiguous. However, another general contract principle that may apply here is that where there is ambiguity, it is generally resolved against the person who created the ambiguity. But really, the ultimate lesson here is that emojis don’t belong in business communications. Because look at all the trouble they can cause! 

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