Can Just Sending an Emoji form a Contract?

Can texting an emoji actually bind you to an enforceable contract? As a commercial seller of flax who sent a responsive emoji to a customer discovered in a Canadian court, the answer is Yes. Worse yet, his single “thumbs up” emoji ended up costing his firm nearly roughly (USD) $100,000. In this blog post, we take a look at the case that made the rounds on the news and social media and what lessons it may have for those of you who here south of the border in the U.S. who might be tempted to send that thumbs up to your business customers, partners, vendors and suppliers.

The “Thumbs Up” Emoji Case

In the case of South West Terminal Ltd. v. Achter Land, 2023 SKKB 116 (CanLII) (June 8, 2023), Plaintiff South West Terminal (which we’ll just call “SWT”) were looking to purchase a large quantity (86 metric tons) of flax from Achter Land (“Achter”), a party with which SWT had previously done business. In fact, as we’ll get into below, the parties’ prior course of dealing would come to impact the Canadian court’s decision.

After some preliminary discussions with Achter, SWT’s grain buyer (and authorized representative [and, incidentally, a former SWT employee who often negotiated with Achter]) Kent Mickleborough had drafted an agreement for the flax at a per bushel price of $17.00 (roughly amounting to about $670 per metric ton). Mickleborough physically signed the agreement on behalf of SWT, took a picture of it with his phone, and later texted the image to the personal cell phone of Chris Achter (owner of Achter) along with the message: “Please confirm flax contract”.

Mr. Achter immediately responded to both the photo of the contract and accompanying message with a thumbs up emoji. (Side note: the case doesn’t really say whether it was an actual thumbs up emoji or instead a thumbs up “reaction” to the actual text bubble like you’re able to do on iOS devices).

As you can probably guess, Achter later failed to deliver the flax by the delivery date stated in the contract and (of course) prices for flax subsequently went up dramatically to $41.00 per bushel the month of contracted-for delivery (or $1,614 per ton). As they say in Canada, “Ouch.”

The Trial Court’s decision

In Achter’s motion for summary judgment, Chris Achter argued that his thumbs up emoji was simply to indicate that he had received SWT’s contract and not Achter’s actual agreement to its terms. Achter further testified that the full terms and conditions of the flax contract were were never sent to him and, instead, it was his understanding that the physical contract would be sent to him later for his review and approval (or rejection). In short, Achter’s position was that their thumbs up emoji was the functional equivalent of a “read receipt” and not an actual manifestation of assent to an offer, like a traditional signature on the dotted line.

The Canadian trial court was not persuaded by Achter’s arguments. In finding for SWT on summary judgment, the judge pointed to the two sides’ prior course of dealing, namely a pattern (which Achter did not dispute) of entering into agreements for grain in the past under virtually identical circumstances. In particular, the trial court found that SWT’s grain buyer had on prior occasions texted a “Please confirm terms of [grain] contract” along with the specific agreement and that Achter had in all such cases responded with either a “Looks good”, “Ok” or a “Yup” and, ultimately, delivered the contracted for grain. Therefore, the Canadian court reasoned that “both sides clearly understood these curt words were meant to be confirmation of the contract and not a mere acknowledgement of the receipt of the contract by [Achter].” and that in none of the prior occasions had there been any misunderstanding or “confirming the receipt” of such contracts.

In addition to the two sides’ prior dealings, the trial judge also looked to the now common usage and meaning of the thumbs up emoji, quoting the entry to find that “it is used to express assent, approval or encouragement in digital communications, especially in western cultures”.

As a result, the trial judge in Saskatchewan found that Achter’s sending of that thumbs up emoji was no different than his previous short, written responses to contractual offers from SWT (all of which had been fulfilled without question), thereby signaling a meeting of the minds on the contract forwarded and forming a valid contract. As a result, the Canadian court found in favor of SWT and against Achter in the amount of (CAD) $82,200.

Takeaways from the Thumbs Up Emoji Case

Even though this case is a Canadian case, it offers some helpful insights into what to do and, more importantly, what not to do when it comes to texting emojis in the commercial setting, specifically in the context of contract negotiation.

Takeaway 1: Don’t. In other words, please just don’t use, or at least try your very hardest to avoid using, emojis in the negotiation process, particularly for some goods (or even services) as potentially expensive as a contract for commodities like grains. This is true whether you’re a buyer or a seller, and it is especially true where the relationship between the parties is established and collegial, bordering on informal even. In these instances, texting back and forth to one’s cell phones can be common and not always strictly business or professional. Ironically, these are the situations where a misunderstanding over a thumbs up or any other type of emoji or emoticon or meme or gif or whatever are most likely to occur.

Takeaway 2: Qualify (or at least Clarify). If you absolutely must use emojis in your day to day commercial communications, at least do yourself a favor and add a quick clarification or qualifier to your sent emoji. What do I mean? As an attorney, I have to say I absolutely love how (SWT’s buyer) Mickleborough apparently had a habit of adding “Please confirm terms of [grain] contract” to each of his texts to Achter involving a sent contract. As opposed to just assuming that the Achter understood that an actual contractual offer had been made. Employee (or, more accurately, broker) of the Month! To me, this was huge and was a big factor in having the court reach the conclusion that of course the thumbs up emoji counted as an acceptance of contract. To get hyper-anal, I would’ve preferred something more like, “Please acknowledge acceptance of these terms by replying…” to which he could’ve added something like “Yes”, “Y” or even “X” to make it really easy. This both clarifies the purpose of the text as well as lets the recipient know specifically how the deal can actually be sealed. It eliminates ambiguity and need for interpretation, in other words.

But what about the other end? I’ve already given my lecture on not using emojis at all and, frankly, using “Looks good”, “Ok”, or things like “Yup” is little better. But what might Achter have been able to do instead of or proximately with the sending of the thumbs up? To this, he could have also texted something short like “Pending approval of final terms” or “Conditioned upon signing of final agreement’. I believe this would have been enough to get past summary judgment and spoil a trial court finding that an actual offer was made since it would, in effect, imply that not all of the essential terms were in front of the two sides at that moment (which is essential to any valid contract formation). Even if Achter (assuming you believe his argument) had just responded with a few short words like, “Got it” or “received, thanks” or the ever popular “kewl”, or any combination of similar words, it might’ve ended up saving his firm close to USD $100,000 or at least getting him past summary judgment anyway, which would have perhaps enabled Achter to settle for something far less than the action court award to SWT.

As you would expect, this is an issue which is continues to evolve, particularly here in the United States. We’re going to have to see how more recent decisions on the use of emojis and contract formation specifically with thumbs up as they wend their way up from the trial court to the appellate process and in newer case decisions on this topic.

Ben Bhandhusavee is the Founder of BHANDLAW, PLLC, a technology and e-commerce law practice advising founders and management teams on select e-commerce and intellectual property matters, as well as corporate and technology transactions. The firm serves corporate and individual clients throughout Arizona, the United States, and internationally. For more information, feel free to reach out using the contact form on the right or call us at (602) 222-5542 to schedule a meeting. Connect with Ben on LinkedIn or Avvo.