An interesting and timely court proceeding occurred recently in Canada. The issue in that case was whether a “thumb’s up” emoji can be used to signal an acceptance of an offer, thus confirming a valid contract. This particular Canadian judge held that it can.
Kent Mickleborough was looking into buying 86 tons of flax from a farmer, Chris Achter. Mr. Mickleborough texted Mr. Achter a picture of the contract that required Achter to the flax. He asked Mr. Achter in the message to “please confirm flax contract.”.
Achter chose to respond with an “thumbs up” emoji. As we know, use of emojis has become commonplace, especially when communicating in an informal manner, like through text messages or what’s app.
Achter, however, did not deliver the flax by November (as Mickleborough contended he was required to do under the contract) and the price for flax increased. Mickleborough demanded that Achter deliver the flax at the price that he believed was agreed upon, mentioning he had confirmed many contracts in the past by only text message and had never had this issue before.
Mr. Achter refused to deliver the flax. He stated he did not agree to anything, and that the thumbs up emoji simply meant he confirmed receipt of the contract, and was not an agreement of the contractual terms. He denied that he utilized the thumbs-up emoji as a digital signature of the incomplete contract.” Achter said in an affidavit: “I did not have time to review the Flax Contract and merely wanted to indicate that I did receive his text message.”
The Judge agreed with Mr. Mickleborough and held a thumbs up emoji was a valid way to convey a signature.
The Judge held that “a 👍 is a non-traditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way … to convey Achter’s acceptance of the flax contract.”
The Judge further stated that while, “The case is ‘novel,’ (at least in Sasketchewan), this Court cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emoji and the like.”
This case obviously has no precedential value in the United States, but given the informality of communication and the general use of emojis, we will surely see cases like this in the near future. Although emojis might seem to be just fun, when conducting business communications, it would be better to use words instead of emojis in light of this ruling that an emoji may be used to form an acceptance to a contract.
This case also shows the unpredictability of a litigation. For numerous reasons, I do not agree with the Judge’s ruling and do not believe that a valid contract was formed (under Florida law). One never knows how a judge or a jury will rule. They are both unpredictable and no case is ever a sure thing. As a result, you should be careful in how you document your business transactions, make sure that you use solid contracts, and that you hire effective counsel as soon as you realize that litigation might ensue.
