|
We all know that contracts are typically binding when signed by hand. With the evolution of technology, most of us also know that electronic signatures are binding. But can an emoji bind someone to a contract?
An emoji is generally defined as a small picture, usually of a face, person, or object, used in digital communications to describe a feeling or an action. Some of the earliest emoji depictions on the internet involved a colon and a parenthesis to depict a smile “:)” These have evolved to cartoon-like images that are available on text messages, emails, and similar communication platforms. Emojis are typically used in more casual communication and their use in formal and work settings is often questioned, if not discouraged. Until now, emojis seemed to have no place in the creation of contracts.
On June 8, 2023, a court in Saskatchewan, Canada considered whether a thumbs-up emoji could evidence intention to enter into a contract (South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII). This case involved two parties: a farming corporation and what was referred to in the case as a grain and crop inputs company (apparently a super store for agriculture). The two often did business together and had a long-standing relationship in which the G&C company would buy grain from the farming corporation.
In early 2021, the grain buyer for the G&C company sent a text message to a representative of the farming corporation that he was looking to buy a certain amount of flax at a certain price. After that text was sent and received, the grain buyer spoke with two different representatives of the farming corporation to discuss terms of the potential flax sale. Then, the grain buyer drafted a contract pursuant to the terms discussed, signed it, and texted a photo of that contract to one of the representatives of the farming corporation along with the message “Please confirm flax contract.” In response, the representative sent an emoji of a thumbs-up. The court considered these facts, and the historical relationship between the two companies, and then decided that the thumbs-up emoji did indeed indicate the farm corporation representative accepted the contract prepared by the grain buyer.
Despite this case, do not fear that any thumbs-up or similar emoji you send will unintentionally lock you into a contract. The creation of a binding contract depends on many factors including customary usage, context, and intent. Customary usage would consider the typical meaning of emojis in the geographic area and industry where the parties to the potential contract are. In other countries, for example, certain emojis have different meanings than they do in the United States. Context and intent consider the historic pattern of communications and typical methods of business dealings between the parties involved. In the Canadian case, for example, the two representatives had a history of entering into contracts via text messages, with the farming corporation representative often agreeing to a contract sent via text message with a simple text response of “ok,” or “yup,” or “looks good.” The Canadian court treated the thumbs-up emoji as a variation of those quick responses.
The conclusion to be drawn from this emoji case is that contracts require caution even when there is a history of contracts between the parties. We recommend you consult experienced legal counsel to avoid any unfavorable contract terms or unintended consequences. The attorneys at Selzer Gurvitch are experienced in dealing with contract negotiation and drafting and are eager to assist you with your contracts.
|
