On June 8, 2023, the King’s Bench for Saskatchewan (the Court) in South West Terminal Ltd v Achter Land & Cattle Ltd, 2023 SKKB 116, ruled that the “thumbs-up” emoji sent via text was a valid form of acceptance of a contract, ordering over $82,000 in damages for breach of contract.
The Plaintiff, South West Terminal Ltd (SWT), claimed that it entered into a deferred delivery purchase contract for flax with the Defendant, Achter Land & Cattle Ltd. A buyer acting for SWT drafted and signed a flax contract which stated that SWT agreed to buy and Achter agreed to deliver 87 metric tonnes of flax within a specified period. The buyer texted a picture of the contract to Chris Achter, the proper representative of Achter Land & Cattle Ltd. The text stated, “please confirm flax contract”, to which Achter responded with a “thumbs-up” emoji. Achter did not deliver any flax, and SWT sued for breach of contract and damages.
The parties disputed the meaning of the “thumbs-up” emoji. SWT argued that the emoji meant that Achter agreed to the terms of the contract. Achter argued that the emoji did not indicate that he accepted the terms of the contract and did not function as a “digital signature”, rather, it was used to confirm that he had received the contract and he was under the impression that the complete contract would follow by fax or email for him to review and sign.
The Court found that, while a “thumbs-up” emoji is a non-traditional way to “sign” a document, under the circumstances it was a valid way to convey the two purposes of a “signature”- to identify the signator and to convey the acceptance of the flax contract. The Court analyzed the nature of the relationship between the parties and found that there was a long-standing business relationship in which Achter had previously confirmed his acceptance of contracts with SWT through text using the words “ok”, “yup” or “looks good.” As a result, the Court concluded that a reasonable bystander knowing all of the background would have come to the objective understanding that the parties reached consensus ad item.
The Court dismissed arguments that alleged that allowing a “thumbs-up” emoji to signify acceptance would open the “flood gates” and result in cases questioning the interpretation of other emojis such as the “shaking-hands” emoji. The Court explained that courts cannot “attempt to stem the tide of technology and common usage” and should be ready to meet the new challenges that may arise from the use of emojis and the like.
The Court found the flax contract enforceable, granted summary judgment in favour of SWT, and ordered over $82,000 in damages for breach of contract to be paid to SWT.
Summary By: Victoria Di Felice
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