Sending a “thumbs-up” emoji over text can have major legal implications after a judge in Canada ruled the simple response can represent agreeing to a legally binding contract.
Justice T.J. Keene said the emoji is a “non-traditional means to ‘sign’ a document” during a June 8 ruling, which decided a contract dispute between two men in Saskatchewan: Chris Achter, a local farmer, and Kent Mickleborough, a marketing representative who acts as a grain buyer.
The emoji in question was used during a text conversation between the two men in 2021, when the rep sent a contract drafted for Achter to sell 86 metric tonnes of flax to South West Terminal Ltd (SWT) at $17 per bushel (or $669.26 per tonne). Achter responded to a photo of the contract with a thumbs up, court documents show.
Keene ruled the emoji was an agreement to its terms and conditions, saying: “…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.”
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The text exchange took place on March 26, 2021, when the two parties were negotiating a contract to purchase the grain for a deal that would take place in November.
Mickleborough signed the physical contract, took a photo of it, and sent it to Achter.
“Please confirm flax contract,” he wrote in the text, court documents show.
Achter sent back a thumbs-up emoji.
By November 2021, Achter had not delivered the flax to SWT, as the contract stipulated, so SWT sued for breach of contract and damages of $82,200.21 plus interest and costs.
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Achter disputed the use and meaning behind his emoji, telling the court that he meant he received the contract and would look at it, not that he was agreeing to its terms, court documents show.
“I confirm that the thumbs-up emoji simply confirmed that I received the Flax contract,” a court deposition reads. “It was not a confirmation that I agreed with the terms of the Flax Contract. The full terms and conditions of the Flax Contract were not sent to me, and I understood that the complete contract would follow by fax or email for me to review and sign.”
Keene disagreed, citing text messages used by Achter in previous business dealings over years of transactions. The two men had been in business since at least 2015.
Mickleborough said he and Achter previously met in person for such contracts but with the COVID-19 pandemic, the two parties would speak over the phone, text or email.
“We would typically have a conversation, either in person or over the telephone, agree on a price and volume of grain, then Chris would ask me to write up the contract and send it out to him. I have done approximately 15 to 20 contracts with Achter Ltd. during my time with SWT,” Mickleborough said, court documents show. “After the commencement of the COVID-19 pandemic in approximately March of 2020, the sales team with SWT stopped going out and meeting with producers in person.”
So, they sent emails, spoke on the phone and texted.
Keene said the court looked at “how each party’s conduct would appear to a reasonable person in the position of the other party.”
“The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound,” a court disposition reads.
Keene went on to rule Mickleborough was justified in believing the thumbs-up emoji represented Achter agreed to the contract.
