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Be careful before you casually dash off another thumbs-up emoji: A Canadian court has found that the ubiquitous symbol can affirm that a person is officially entering into a contract.
The ruling pointed to what a judge called the ânew reality in Canadian societyâ that courts would have to confront as more people express themselves with hearts, smiley faces and fire emojis â even in serious business dealings or personal disputes.
The case questioned whether a farmer in Saskatchewan had agreed to sell 87 metric tons of flax to a grain buyer in 2021. The buyer had signed the contract and texted a photo of it to the farmer, who had responded by texting back a âthumbs-upâ emoji.
The farmer, Chris Achter, contended that the âthumbs-up emoji simply confirmed that I received the flax contractâ and that it was not confirmation that he had agreed to the terms of the deal, according to the ruling. He said he had understood the text to mean that the âcomplete contract would follow by fax or email for me to review and sign.â
The grain buyer, Kent Mickleborough, pointed out that when he had texted the photo of the contract to Mr. Achterâs cellphone, he had written, âPlease confirm flax contract.â So when Mr. Achter replied with a thumbs-up emoji, Mr. Mickleborough said he had understood that Mr. Achter âwas agreeing to the contractâ and that it had been âhis wayâ of signaling that agreement.
The judge noted that Mr. Achter and Mr. Mickleborough had had a longstanding business relationship and that, in the past, when Mr. Mr. Mickleborough had texted Mr. Achter contracts for durum wheat, Mr. Achter had responded by succinctly texting âlooks good,â âokâ or âyup.â
Both parties clearly understood these terse responses were meant to be confirmation of the contract and ânot a mere acknowledgment of the receipt of the contractâ by Mr. Achter, wrote Justice T.J. Keene of the Court of Kingâs Bench for Saskatchewan. And each time, Mr. Achter had delivered the grain as contracted and had been paid.
As such, Justice Keene ruled last month that there had been a valid contract between the parties and that Mr. Achter had breached it by failing to deliver the flax. The judge ordered Mr. Achter to pay damages of 82,200 Canadian dollars, or about $61,000.
âThis court readily acknowledges that a đ emoji is a nontraditional means to âsignâ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a âsignatureâ â to identify the signatorâ as Mr. Achter because he was texting from his cellphone number and âto convey Achterâs acceptance of the flax contract,â Justice Keene wrote.
In coming to his decision, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: âused to express assent, approval or encouragement in digital communications, especially in Western cultures.â
âI am not sure how authoritative that is but this seems to comport with my understanding from my everyday use â even as a late comer to the world of technology,â Justice Keene wrote.
In an interview on Thursday, Mr. Achter said he âobviouslyâ disagreed with the decision and declined to comment further. His lawyer, Jean-Pierre Jordaan, did not immediately respond to an emailed request for comment.
According to the ruling, Mr. Jordaan had warned that allowing a thumbs-up emoji to signify agreement to a contract would âopen up the flood gatesâ to all sorts of cases asking courts to define the meaning of other emojis, such as a handshake or a fist.
Josh Morrison, a partner at the law firm that represented Mr. Mickleborough, declined to comment on the decision, but told Canadian Lawyer magazine that it was a âreally interesting case â a classic law school question.â
Laura E. Little, a professor at Temple University Beasley School of Law, called the decision âa remarkable sign of the new world of communication when an emoji can work to snap the trap of creating a contract.â
Julian Nyarko, an associate professor at Stanford Law School, said the legal test for agreement to a contract centers on how a reasonable person would interpret the signs that both parties gave. In some cases, a verbal agreement is sufficient, he said.
âFor most intents and purposes, a reasonable person, if they see a thumbs-up emoji, would think that the person who is giving the thumbs-up wants the contract,â Professor Nyarko said. âIt fits quite neatly into the legal doctrine that the courts have established.â
Even so, the precise meanings of emojis will remain an open question in the United States and Canada, depending on the facts of each case, said Eric Goldman, a law professor and co-director of the High Tech Law Institute at Santa Clara University School of Law.
Professor Goldman, who has tallied 45 court opinions in the United States that have referenced the thumbs-up emoji, noted that some young people use the emoji sarcastically or disingenuously. Others use it merely to acknowledge receipt of a message like a verbal âuh-huh.â In some Middle Eastern countries, he said, the gesture is offensive.
âThis case wonât definitively resolve what a thumbs-up emoji means,â Professor Goldman said, âbut it does remind people that using the thumbs-up emoji can have serious legal consequences.â
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