Can an Emoji Bind You to a Contract?

By Emily Hives

In South West Terminal Ltd. v. Achter Land & Cattle Ltd., 2023 SKKB 116 the Court of King’s Bench in Saskatchewan found that a texted emoji can be sufficient to create a binding contract in certain circumstances. Although this case is not binding in Ontario, it offers an interesting glimpse into how Ontario courts may decide similar contractual issues.

The Plaintiff, South West Terminal Ltd. (“SWT”) claimed the parties had entered into a deferred delivery purchase contract in which SWT agree to buy and Achter Land & Cattle Ltd. (“Achter”) agreed to sell 87 metric tonnes of flax for a specific price per tonne, with delivery in November 2021. Achter did not deliver any flax. SWT sued for breach of contract. 

SWT had purchased grain from Achter on several prior occasions. In or around March 2021, a grain buyer for SWT spoke with Chris Achter, the owner and operator of Achter, about a price for flax. After their conversation, the grain buyer prepared and signed a contract to purchase the flax. He took a photo of the contract using his cell phone and texted the photo to Chris Achter along with the message “Please confirm flax contract”. Chris Achter texted back a “thumbs-up” emoji.

The Court considered whether a contract had formed, and in particular, whether:

1. there had been a meeting of minds;
2. there was certainty of terms; and
3. the requirements of Saskatchewan’s The Sale of Goods Act were met.

The Court considered the fact that the parties had a long-standing business relationship and that Chris Achter had executed binding contracts with SWT by text on several prior occasions by responding to a contract with the words “Looks good”, “Ok” and “Yup”. In those cases, Achter had delivered the grain and was paid by SWT, and the Court found that those words were meant to be a confirmation of the contract and not a mere acknowledgement of receipt of the contract. The Court was satisfied, based on all the evidence, that a reasonable, objective bystander would also believe that Chris’ use of the thumbs-up emoji meant he was approving the contract, and that the parties had a meeting of the minds just like in the previous occasions.

The Court also found that, in the circumstances, the emoji was “an action in electronic form” that can be used to express acceptance of a contract as contemplated under Saskatchewan’s The Electronic Information and Documents Act.

Achter submitted that the terms of the contract were not certain because the General Terms and Conditions weren’t included in the photograph of the contract, and the delivery date was only indicated to be “Nov”. The Court did not accept these arguments. The parties had entered into many previous contracts which repeatedly set out the terms and conditions. The terms and conditions had never changed. A reasonable, objective bystander aware of the parties’ contractual history would believe the same contract was being entered into. Moreover, even if the general terms and conditions were not part of the flax contract, the essential terms of the contract were contained on the page that was texted to Chris Achter.

Achter also submitted that the requirements in s. 6 of Saskatchewan’s The Sale of Goods Act were not met. The Court noted that the common law has developed to hold that emails are sufficient to constitute writing and signing requirements and that clicking “I agree” icons can constitute an electronic signature in waivers. The Court found that the thumbs up emoji originating from Chris’ unique cell phone met the requirement under The Sale of Goods Act and constituted a signature based on the facts of the case.

As a result, the Court held that there was a valid contract between the parties that the defendant breached by failing to deliver the flax. SWT was awarded $82,200.21 in damages, which was the difference between the contract price and the market price at the time that delivery ought to have been made.