October 30, 2023
A contract requires an offer and acceptance. It also requires consideration, but we already explained that concept.
“Offer and acceptance” is one of those topics that law school courses drill into first-year student’s brains, with all the strange variations we seldom deal with in practice.
The question, however, can arise as the law evolves to keep up with modern times.
This leads to the question of whether, in the digital age, a “thumbs up” emoji acceptance of an offer to form a contract.
A Saskatchewan court says it can, and since contract law is similar across Canada (not including Quebec), the law should be the same in Ontario.
The parties to a proposed deal to supply flax negotiated by text messages. The buyer then prepared a contract, signed it, photographed it and texted it to the supplier, along with the message “Please confirm flax contract”. The supplier replied with a text message containing a “thumbs up” emoji. Prior to the delivery date, flax prices went up, and the supplier did not deliver.
The test for contract formation is an “objective test” (“What would a reasonable person looking at the facts believe the parties intended?”), not a “subjective test” (“What do the parties say they intended?). Courts look not only at the document said to be the contract and surrounding circumstances.
In this case, the parties had a longstanding business relationship. They routinely concluded agreements via text messages, though in the past, words such as “ok” or “looks good” were the acceptance. Those deals were performed by delivery of grain. The buyer’s representative testified that he believed that the ”thumbs up” emoji signified acceptance. The seller testified that it simply meant the contract had been received. There were no further communications.
The judge described the emoji as “commonly used”. He then looked at an online dictionary, which described the emoji as “used to express assent. approval or encouragement”) and applied his own use of the symbol.
The supplier’s evidence is self-serving, which is why courts do not apply a subjective test.
The judge preferred the evidence of the buyer in this case- the use of the emoji expressed approval of the contract, just as the prior years’ casual words had. He goes on to say that the Court “cannot (nor should it) attempt to stem the tide of technology and common usage”. This demonstrates how common law, such as contract law, based upon centuries of judgments rather than a statute, maintains its place in our system, having the flexibility to respond to evolving circumstances.
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