Can an emoji be used to accept and create a legally binding contract?

Communication
January 13, 2025
Communication
January 13, 2025
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Can an emoji be used to accept and create a legally binding contract?

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The 2024 Saskatchewan Court of Appeal in the case Achter Land & Cattle Ltd. (Achter) v. South West Terminal Ltd. (SWT) ruled a thumbs up 👍 emoji sent by text message created a binding legal agreement.

Does this mean you should never send a thumbs up to someone trying to sell you something?  Not exactly.

All cases are fact specific. In this case some of the background facts unique to the case are:

  • The parties communicated by phone and text messages about the terms of an agreement where SWT would buy crops grown by Achter in the future at a set price and date.
  • SWT sent a picture of the first page of a 2 page agreement to Achter by text, signed by an employee of SWT which included the terms discussed
  • the back side (page 2) of the agreement (not sent by text) contained standard terms and conditions
  • SWT and Achter had entered similar 2 page Agreements numerous times over a period 10 years.
  • The employee of SWT asked Achter if he accepted the terms
  • In the past when SWT asked Achter if he agreed to the terms sent by text on previous agreements, Achter texted back the words “yes”, “yup” or “okay”.
  • In this instance, Archer sent a thumbs up emoji.

In reviewing the law related to acceptance of contracts the Court considered the following factors:

  1. Was there intention to create a binding agreement?  In Saskatchewan the test was whether a reasonable person, looking at all the information, thinks the parties intended to create a binding legal agreement.  The Court thought this was the intention.
  2. The Court also reviewed Saskatchewan laws, including both the Sale of Goods Act and the Electronic Information and Documents Act and confirmed the text exchange between SWT and Achter constituted an agreement inwriting signed by both parties and Achter could accept the terms of the agreement in electronic form. While the court was considering Saskatchewan legislation, Alberta has the Sale of Goods Act and the Electronic Transactions Act, which have similarily worded provisions.
  3. The Court took judicial notice that in Western cultures the thumbs up emoji generally means yes, acceptance, or agreement.

The takeaways from this case which you should be mindful of in contractual negotations are:

  • Digital communications by text, including an emoji synonymous with acceptance, can in certain situations create binding agreements.  In other words, the smiley poop emoji or clown faced emoji may not convey acceptance
  • Use words to demonstrate your legal intention.  If Achter responded with textsaying, “I’m not sure” or “maybe” it would have prompted SWT to confirm the legal intention to create an agreement.

While texting emjoi’s is great shorthand to talk to friends or family,  it may not be ideal in creating legal relations – using words in a text or email would be preferrable.

If you enjoyed this article, please give me a thumb’s up!

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Les Scholly
Les Scholly helps you navigate the turning points of life. He is a partner with Pritchard & Co. Law Firm, LLP and member of the Society of Trust and Estate Practitioners (STEP). Contact Les at 403-527-4411 or at lscholly@pritchardandco.com