The use of emojis has become a normal part of the way we interact and converse with others. Emojis have become so prevalent that they often come to replace words and phrases in everyday text conversations. As a base form of communication, therefore, it is not surprising that cases are starting to arise in which a text-based interaction involving emojis is claimed to form a legally binding contract.
The basic elements of a contract include 1) offer, 2) acceptance, and 3) consideration. To jump back to the first year of law school for a minute, Black’s Law Dictionary defines these terms as follows:
- OFFER – To bring to or before; to present for acceptance or rejection; to hold out or proffer; to make a proposal to; to exhibit something that may be taken or received or not. (Internal citations omitted).
- ACCEPTANCE – Two parties agree to the terms of an offer, agreement, or contract. If it is denied, a counteroffer is made until the agreement is reached.
- CONSIDERATION – Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.
So, with these legal definitions in mind, can an emoji really constitute a valid acceptance? In June 2023, a Canadian court held that YES, the use of the thumb’s up emoji 👍 constituted acceptance in a text message-based contract. South West Terminal Ltd. v. Achter Land, [2023] SKKB 116 (Can.).*
In South West Terminal, the dispute centered on a negotiation to buy and sell grain. A representative from a grain company texted a photo of a contract to a farmer with whom it was negotiating. The message stated, “Please confirm flax contract.” The farmer simply replied with 👍.
The parties disputed the meaning of the 👍 emoji, and the farmer later claimed that the emoji was intended to acknowledge receipt of the contract but not acceptance of its terms. The trial court reviewed the historical pattern of text messages between the farmer and the grain company. Each time the grain company texted the farm to confirm various terms of the contract, the farmer responded succinctly with “ok,” “yup,” or “looks good.” South West, at 21. As such, the court held that the thumbs-up emoji constituted acceptance and created a valid, binding contract. The court ordered the farmer to pay $61,442.00 to fulfill the contract.
The South West Terminal decision has, at most, limited persuasive value in American courts. However, it is a good lesson. The current reality is that people communicate regularly via text message as a part of the normal course of business. It is best to proceed with caution with texts and emojis, because even a casual text message may be relied upon as evidence of acceptance of an offer. So, be careful with your 👍!
*SKKB is the citation reference for the Court of King’s Bench for Saskatchewan, which hears trials in civil, family, and criminal matters, and appeals from decisions of the Provincial Court. See https://sasklawcourts.ca/ for more information.
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