“Thumbs-up” case
Contract terms are confusing, and guidance makes it clear that, where possible, contracts should be written in clear and appropriate terms.
It might be assumed that a contract would only be agreed (or “accepted”) once signed.
However, this is not the case, as shown in the case of South West Terminal v Achter Land & Cattle in Canada.
Within this case, a representative of South West Terminal (“SWT”) signed the contract, and texted a photo of it to the owner and operator of Achter Land (“AL”) with the note “please confirm flax contract”. The AL recipient texted back “👍”. The contract was never physically or electronically signed by AL.
SWT argued that the thumbs up emoji meant that the contract had been accepted, and that it was awaiting delivery of 87 metric tonnes of flax at a pre-determined price. AL argued that the the thumbs up emoji was simply confirmation of receipt.
The court agreed with SWT and concluded that 👍 did indicate that the contract had been accepted.
In reaching this decision, previous contracts, which were not disputed between the parties, were considered. Within these previous contracts, AL was considered to have accepted the contracts by responding “yup”, “OK” or “Looks good.”
The court noted the principle that that “acceptance” was an objective test, based on what a reasonable bystander, knowing all the background, might conclude.
English Law position
Whilst the above decision is a Canadian decision, Canada is a commonwealth country, and its legal system only recently evolved away from the English legal system (through Acts of Parliament between 1867 and 1982).
The Canadian legal system in civil litigation is therefore similar to the English legal system, and it is likely an English court would reach the same conclusion.
While there has not yet been an English judgment regarding emojis in this context, English courts have previously determined that ticking boxes on websites, or sending emails with automatically-added e-signatures can count as acceptance, along with proceeding to act as if the contract has been agreed by, for example, making a delivery or payment.
Outside of legal contracts, the UK government has approved “smiley faces” as an acceptable way to vote in elections (see link here).
Conclusion
When negotiating contracts and/or agreeing key terms, both individuals and companies should be very careful not to do anything which could constitute acceptance and should send positive affirming emojis only if terms are agreed.
🤘🤙🤝😀😁😃 🤘🤙🤝😀😁😃🤘🤙🤝😀😁😃
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