Much media attention has been drawn to a recent judgement delivered by the Saskatchewan Court of King’s Bench where a “thumbs up” emoji (👍) led to the finding of a valid contract. This post will explain the Court’s reasoning so you can decide whether it was reasonable.

Facts

The facts can be summarized as follows.

On March 26, 2021, Mr. Mickleborough sent a text message to numerous producers outlining his intent to buy flax. Following this message, Mr. Mickleborough received a call from Mr. Achter. After the call, Mr. Mickleborough drafted a contract for Mr. Achter to sell 87 metric tonnes of flax with a November delivery date. The contract was priced at $669.26 per tonne, which amounted to a total price of $58,225.62. 

Mr. Mickleborough signed the contract, and took a photo of the signed contract. He then texted the photo of the contract to Chris Achter, along with the text message: “Please confirm flax contract”. Chris Achter texted back a “thumbs-up” emoji (👍).

Archer did not deliver the flax in November and the price for flax on November 30, 2023 was $1,614.09 per tonne. This was almost $1,000 over the original contract price.

Issue

It is important to note that a valid contract is formed when three elements are met:

1. There is an offer and acceptance of the offer;

2. There is an intent between the parties to create legal relations (consensus ad idem or as it is commonly referred to as “meeting of the minds”); and

3. There is consideration.

In this case there was an offer, backed by consideration. Thus, the issue before the Court was whether there was an intention between Mr. Mickleborough and Mr. Achter to create legal relations. 

Reasoning

The Court began its analysis by establishing that an intention to create legal relations is determined by looking at how each party’s conduct would appear to a reasonable person in the position of the parties. It is not solely determined by the subjective intentions of the parties themselves.

The Court looked at previous contracts that Mr. Mickleborough and Mr. Achter entered without any issues. For example, on July 14, 2020, Mr. Mickleborough prepared a contract to buy wheat from Mr. Achter. Mr. Mickleborough signed the contract, took a photo of it and sent it to Mr. Achter. Mr. Atcher then texted back: “Looks good”. This contract was delivered without issue. Another two contracts were entered into where Chris texted back “Ok” and “Yup” upon receiving a signed contract from Mr. Mickleborough. These contracts were delivered without issue.

The Court then turned to the dictorary meaning of the “thumbs up” which is defined as, “it is used to express assent, approval or encouragement in digital communications, especially in western cultures.” Thus, the “thumbs up” emoji was analogized to the previous contract that were entered into where Mr. Achter replied with “looks good”, “ok” or “yup”. Using the previous conduct of the parties, and the definition of a “thumbs up” emoji, it can be reasoned that there was an intention to create legal relations.

Outcome

Since the Court found that there was an intent to create legal relations under the contract, Mr. Mickleborough was entitled to damages that amounted to $82,200.21. 

Other Additional Issues

Mr. Achter attempted to argue that an actual signature was essential because it confirms the person’s identity and a signature conveys the message of acceptance. This was not accepted as the emoji originated from Chris’ cell phone and based on the facts of this case, the emoji was consistent with approving the contract. 

The Court also found that the “thumbs up” emoji is an action in electronic form that can be used to express acceptance as contemplated under the Electronic Information and Documents Act, 2000 [EIDA].

A cautionary note, the materials on this website provide an overview and does not constitute legal advice. Readings are cautioned against making any decisions based on this material alone. Rather, Speicifc legal advice should be obtained.