In the case of Achter Land & Cattle Ltd South West Terminal Ltd, a Canadian Court considered whether the use of a “thumbs up” emoji was sufficient to convey acceptance when forming general commercial contracts.

Although the Canadian Court’s ruling is not enforceable in the UK, it has attracted international attention and shows the considerations a UK court may take into account when considering whether use of emojis could amount to valid acceptance of a contract.

The background

Achter Land & Cattle Ltd and South West Terminal Ltd were in dispute as to whether they were parties to an enforceable agreement relating to the sale of grain. South West claimed that the contract was formed out of an exchange of two text messages as set out below.

1. The first text message – an employee of South West sent to Achter Land a picture of the front page of a proposed agreement with the accompanying words “Please confirm flax contract”.
2. The second text message – a representative for Atcher Land replied to the request for confirmation with a thumbs up emoji.

Court of Appeal’s decision

The Court of Appeal did not agree with Achter Land’s arguments that the thumbs up emoji was used to confirm receipt of the agreement (rather than acceptance of the contract itself), or that there is ambiguity in the use of this emoji. It reasoned that there was quite a difference between saying that a communication (whether by word, gesture or symbol) does not bear a universal meaning and, asserting that it is incapable of having a particular meaning ascribed to it in a specific circumstance. In this case, the judge considered how an objective observer would interpret the text message and, if that observer would conclude that an agreement was intended and reached.

The Court of Appeal emphasised that it was important not just to focus on the words themselves but to consider the surrounding circumstances to determine the meaning of the emoji.

What’s the position in the UK?

Although the Canadian Court’s ruling does not have direct enforceability in the UK, a different case, was considered in the UK related to WhatsApp messages.

In the case of Southeastern Maritime Ltd v Trafigura [2024] an issue was highlighted as to the effect of a message sent by WhatsApp. The case considered whether the parties had concluded a charterparty agreement during negotiations. The judge in that case reasoned that just because a message came via WhatsApp, it did not mean it should be disregarded or treated as less significant than a message sent by email.

Summary

When conducting contract negotiations via SMS or WhatsApp, be mindful of the use of emojis and informal or slang language, so that those items are not being used to inadvertently bind the parties to a contract. Where emojis are being used, it is important to ensure that the meaning of an emoji and its purpose is clearly understood by all parties.

Should you require any advice in relation to entering into a legally binding agreement and/or documenting that agreement, please get in touch with our Commercial Team who would be happy to assist.