One of the fundamental elements of a contract is that an offer must be accepted for it to be legally binding. What may first come to mind are written signatures, a handshake, or outright saying “I accept”. However, a Canadian court had to grapple with the question of whether an emoji can be added to this list.
In South West Terminal Ltd. v Achter Land (2023 SKKB 116), the Court of King’s Bench of Saskatchewan was faced with an agreement that one party was purported to have accepted by sending a “👍” emoji. Although the case was heard outside of Alberta, it represents a cautionary tale about the relationship between modern developments in technology and contract law.
South West Terminal Ltd. (“SWT”), a grain and crop inputs company, had purchased grain from Achter Land & Cattle Ltd. (“Achter”) under a series of contracts dating back to approximately 2012.
In March 2021, Kent Mickleborough and Chris Achter, as representatives for SWT and Achter respectively, were in discussions surrounding another grain supply contract. Following those discussions, Mr. Mickleborough drafted a contract for Achter to sell 86 metric tonnes of flax to SWT which would be delivered in November that same year. After signing the contract using his own wet-ink signature, Mr. Mickleborough took a photo of the partially executed contract with his cell phone and texted the photo to Mr. Achter alongside a text message stating: “Please confirm flax contract”. Mr. Achter sent a text back with a “👍” emoji.
Achter did not deliver any flax to SWT in November 2021.
The Court ultimately decided that the parties had created a legally binding contract which Achter had breached by failing to deliver the agreed upon flax in November 2021.
The Court began by examining the parties’ dealings from the perspective of an objective bystander: was the parties’ conduct “such that a reasonable person would conclude that they had intended to be bound” by the flax contract (para 18). The Court’s analysis was not restricted to solely what was written in the alleged flax contract, going beyond to consider surrounding circumstances such as the nature and relationship of the parties.
The use of a “👍” emoji to accept a contract was the hot-button issue. While SWT asserted that the emoji should be construed as confirmation to enter into the flax contract, Achter claimed that the emoji was simply to acknowledge receipt of the text and nothing more. Allowing an emoji to constitute acceptance, Achter argued, would be a slippery slope when it comes to courts attempting to interpret the meaning of the hundreds of thousands of emojis available on peoples’ phones. Achter also relied on the Saskatchewan Sale of Goods Act, which requires that contracts for the sale of goods in excess of $50 must either be (i) partially performed, which was not the case here, or (ii) reduced to some form of note or memorandum signed by the parties, where an emoji was not a signature.
First, the Court determined that a reasonable objective bystander who had considered the surrounding context and history between the parties would conclude that they intended to be bound by the flax contract. The parties had an extensive history of contractual dealings through text messages, with there being multiple instances where representatives for Achter had used short replies to accept contracts (for example, “ok” and “looks good”).
Second, although an emoji may appear to not fit the mould of a “signature” on its face, the “👍” emoji was found to be a valid form of signature given the facts of the case. Not only was text messaging the predominant method of communication between the parties when forming their contracts, but the particular emoji typically conveys approval and was clearly identifiable as coming from a representative of Achter through a unique cell phone number. As a result, the “👍” emoji was found to meet the requirements of a signature in the Saskatchewan Sale of Goods Act.
In a digital age, this will undoubtedly not be the last time that Canadian courts have to grapple with emojis and contracts. While it was key to the Saskatchewan Court of King’s Bench’s ruling that the parties had a lengthy history of texting in their contractual dealings, the decision offers the insight that something as seemingly insignificant as sending an emoji can create legally binding obligations.
By Taylor Maxston
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.
