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A Canadian judge has given a big thumbs up to the use of an emoticon as a way accepting the terms of contract.
The unusual legal case concerned a contract for the purchase of flax, a flowering crop which is cultivated as a food and fibre crop. The claimant and buyer, Mr Mickleborough of South West Terminal Ltd, texted an image of the signed contract to the proposed seller Chris Achter along with the message: “Please confirm flax contract”.
Achter responded to the text with a “thumbs-up” emoji, however when he later did not deliver the flax and prices went up, South West Terminal Ltd decided to claim damages of $82,000 Canadian dollars — roughly £50,000.
Addressing the use of the popular emoji, Achter told the court: “The thumbs-up emoji simply confirmed that I received the Flax contract. 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.”
Justice Timothy Keene, the Canadian judge tasked with overseeing the case, eventually ruled in favour of the buyer. “There was a valid contract between the parties that the defendant breached by failing to deliver the flax,” he said.
In his ruling, Justice Keene cited the definition of the thumbs-up emoji found on Dictionary.com, which states: “It is used to express assent, approval or encouragement in digital communications, especially in western cultures.”
Justice Keen said this definition “comport[s] with my understanding from my everyday use — even as a latecomer to the world of technology.”
He continued:
“I am satisfied on the balance of probabilities that [Achter] okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item — a meeting of the minds — just like they had done on numerous other occasions.”
In response to the defence argument that an emoji as a form of acceptance could “open the floodgates” to allow all interpretations of different emoji meanings, Keene added:
“I agree that this case is novel (at least in Saskatchewan) but nevertheless, 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 emojis and the like.”
