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Thumbs Up to Accepting Contracts!

A Canadian Court has accepted a thumbs up emoji as acceptance of a contract.

The contract in question concerned the purchase of flax. The buyer (Kent Mickleborough) texted an image of a signed contract to the proposed seller (Chris Achter), with the message “please confirm flax contract.” The seller then replied to this message with a thumbs up emoji.

The contract provided for delivery in November but the seller failed to deliver the flax on time and the price for flax increased. A dispute arose as to whether the exchange of texts amounted to a binding contract and the terms of it.

In court the seller argued that the thumbs emoji simply confirmed that he had received a copy of the contract, not that he agreed to the terms set out in it. He said that he understood a full copy of the contract terms would be sent to him to review and sign.

However, the Judge ruled in favour of the buyer, finding that a binding contract between the parties had come into existence notwithstanding the unconventional way in which it had been agreed. The judge found that the thumbs up emoji was used to “express assent, approval or encouragement” and that it had been used in that way in this case.

Under English law the formation of a contract requires an offer to be made by one party which is accepted by the other party. Acceptance is defined as “a final and unqualified assessment to an offer” and this must be communicated to the offeror in order to be effective. In some circumstances, conduct will be considered as an acceptance (e.g. delivering goods and requesting payment without communicating acceptance) However, this is only the case if it is clear that the party did the act in question with the intention of accepting the offer.

The general rule is that agreement must be communicated. This can include contracts made through emails or a website, although there is currently no statutory or common law rules that have been formulated to answer when exactly the offer is accepted in these situations.

Whilst the emoji case was decided in Canada and the facts are somewhat unusual, it is a reminder how acceptance of a contract can occur in the most informal of circumstances and that the ever-evolving nature of technology means that careful thought should always be given when conducting contract negotiations to ensure that you only enter into contracts when you really intend to do so – and the UK courts may well follow the Canadian decision in the future and find that use of an emoji constitutes acceptance.

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