Most of us use emojis, those little symbols that communicate happiness, sadness and every attitude in between.
Emojis have been a part of everyday online communications for decades.
Can emojis be used to communicate consent to a contract? Apparently they can. A decision by the Court of King’s Bench for Saskatchewan has opened the door to the use of these little symbols in lieu of a full signature. Here’s how it all went down.
South West Terminal Ltd. had been purchasing grain from Achter Land for the past several years. When COVID prevented South West representatives from meeting with grain producers, they increased the use of email correspondence.
This included the transmission of contracts for grain purchases. It became common practice for contract confirmations to be communicated with simple phrases like, “looks good,” “ok,” or “yup.”
In March 2021, South West advertised a set price for flax it was prepared to pay and circulated it in texts to several producers. South West and Achter then had a telephone conversation. Afterwards, South West drafted a contract, signed by an authorized employee, for the purchase of flax from Achter at the set price for delivery in November.
A photo of the contract was sent to Achter with a request to “Please confirm the flax contract.” Achter responded with a thumbs-up emoji.
However, Achter never delivered any flax to South West in November. In the interim months, the price of flax increased by 1.4 times.
South West sued, claiming a breach of contract. Achter responded, saying the thumbs-up emoji was not a confirmation of terms, but only signified receipt of the contract pending a complete agreement for review and signing.
The court rejected Achter’s argument, saying times had changed, and that text messages, emails and other non-wet ink signatures are regarded as satisfactory. Given the parties’ past practice of using non-traditional methods to signify approval of contract agreements on at least four previous occasions, the court ruled it would be reasonable to assume the same in this instance.
Is this decision a sign of things to come in contract agreements?
“Generally, I think the result is unsurprising,” Adam Lewinberg, partner with Fasken Martineau DuMoulin LLP, told the Daily Commercial News.
Edward Lynde, also a partner with Fasken, agreed, adding, “Broadly speaking, the law is a social construct and therefore is flexible and should adapt to our current society. With advances in technology, the methods by which we communicate have evolved over time – by letter, via facsimile, via email, via text, etc. Communicating through emojis would appear to be a natural extension as part of this ongoing progression.”
At the same time, both Lewinberg and Lynde see potential problems going forward.
“’Thumbs-up’ may arguably have universal and common meaning,” said Lynde. “However, what if the particular emoji is ambiguous or possesses multiple meanings? How will this be construed or resolved?” In other words, would a heart, smiley face or a bottle of champagne also convey agreement?
“I think that there are risks of people not realizing written agreements in text are as binding as any other written agreement,” said Lewinberg. “I’d prefer that the courts take a cautious approach to evaluating that type of ambiguous evidence, but there is every possibility that they will not.”
The acceptance of emojis to convey consent is not unique to Canadian law. In 2017, a case in Israel saw a landlord relying on emojis sent by a prospect tenant as confirmation they wished rent an apartment. However, a lease was never signed. The court ruled the defendants had acted in bad faith and awarded damages to the landlord.
Lynde suggested parties to agreements consider the risks associated with using emojis to communicate acceptance of agreements.
Better methods such as DocuSign contain certain security measures, including technologies to record the execution of the document, which carry greater certainty and less risk. These would be preferred in order “to memorialize acceptance and execution of agreements.”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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