You could be legally and contractually liable if you give a Thumbs Up…….. Emojis beware

As we all know, a contract can be both written or verbal, subject to a clear and certain offer from one party and an unconditional and unequivocal acceptance from the other party..

While in the past, contracts were physically signed, with the evolution of technology, many contracts are being signed electronically these using PDFs or online channels..

Referring to the title of this post, there has been an interesting case in Saskatchewan, Canada where a judge from the Court of King’s Bench has ruled that a commonly used emoji of a thumbs-up (👍) is an acceptance of a contract..

Yes, you read that right..

Emojis

Brittanica defines Emoji, derived from the Japanese e, “picture,” and moji, “character” as  “digital pictograms used widely throughout social media, texting, e-mail, and other computer-mediated communications. Emojis are used to express a range of objects and ideas, including human emotions, animals, geography, foods, and flags.”

Online dictionaries refer to the usage and interpretation of the (👍) as “I approve”..

• Merriam-Webster Dictionary lists the meaning of this emoji as “an instance or gesture of approval or encouragement“
• Dictionary.com lists the meaning of this emoji as “The thumbs-up emoji is used to express assent, approval, or encouragement in digital communications, especially in Western cultures“..
• Oxford Dictionaries lists the meaning of this emoji as “thumbs up/down ​(informal) used to show that something has been accepted/rejected or that it is/is not a success“

Emojis are nothing new to Oxford as they made history in 2015 by announcing that their “Word of the Year” would be the “Face With Tears of Joy” 😂 emoji, also known as LOL Emoji or Laughing Emoji..

“Emoji have come to embody a core aspect of living in a digital world that is visually driven, emotionally expressive, and obsessively immediate,” said Oxford Dictionaries..

The case of the (👍) emoji and judgement

The synopsis of the case is that a seller Achter Land & Cattle Ltd contracted to sell 87 metric tonnes of flax to South West Terminal Ltd (SWT)..

It appears that after discussing and agreeing to a flax contract over the phone, a representative for SWT texted the representative for flax seller Achter, a photo of the contract along with the text message: “Please confirm flax contract.”

The Achter representative texted back a thumbs-up (👍) emoji, which SWT understood to be acceptance of the contract by Achter..

The drama started when Achter failed to deliver the goods and the representative denied the thumbs up (👍) emoji was a digital signature stating “I did not have time to review the flax contract and merely wanted to indicate that I did receive his text message.”

During the proceedings, it also came out that the parties had a longstanding business relationship and they had previously entered several contracts, with a photo of the contract texted to Achter and accepted via text message using affirmative phrases such as “Looks good,” “OK,” and “Yup.”

In delivering the judgment, Justice Keene noted that he found the flax contract to be very similar to the previous arrangements with “the only difference being “this time instead of words like ‘OK,’ ‘yup’ or ‘looks good’ being texted by Chris, a commonly used (👍) emoji was texted by Chris.”

Justice Keene also noted that to form a contract, there must be an offer by one party that is accepted by another party to create a legal relationship.. The judge found that the test for agreeing to a contract for legal purposes is not whether the parties to the contract subjectively believed they were entering into a contract but whether an objective and reasonable bystander would conclude that the parties had entered into a contractual agreement.

The judge found that when the Achter replied with the thumbs-up emoji, a “reasonable bystander” knowing all the background would “come to the objective understanding the parties had reached . . . a meeting of the minds, just like they had done on numerous other occasions.”

Justice Keene wrote: “In short, what we have is an uncontested pattern of entering into what both parties knew and accepted to be valid and binding deferred delivery purchase contracts. The parties clearly understood these curt words were meant to be confirmation of the contract and not a mere acknowledgment of the receipt of the contract by Chris.”

Read the original article and the full judgment..

Based on this interesting case, can we draw parallels in the maritime and shipping world and what are the chances of this happening in a charter fixture..?? Comment below..