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Canadian Court Says Thumbs-Up Emoji Constitutes Meeting of the Minds Sufficient for Contract Formation

Andrew L Brown

Canadian Court Says Thumbs-Up Emoji Constitutes Meeting of the Minds Sufficient for Contract Formation
canbedone via Getty Images

If you are like me and are old enough to remember texting to show you are happy :-) or  to show you love <3 something, then this article is for you. If you had trouble deciphering the symbols in that first sentence (or the title of this article), then you especially need to keep reading.

When somebody uses textual symbols to portray facial expressions or emotions (like those above), that is called an emoticon. These text-based symbols became popular with the rise of the internet and text messaging in the 1990s. As computers and phones developed, so did the way in which people visually expressed emotions via text messages, emails, or tweets. We are now in the age of emoji, which are actual pictures like 😊 or ❤. Emojis help people express emotions, convey entire messages, and add context to digital conversations.

Unsurprisingly, in recent years, emojis have begun to play an important role in the courtroom, predominantly in criminal cases in the United States. Famously, in the criminal trial of Ross Ulbricht, founder of the online black-market website Silk Road, Ulbricht’s lawyers objected to the prosecution reading certain of Ulbricht’s messages out loud, because the emojis he used added important context to what he was saying.

Courts interpreting emojis in contract cases has been less common. In a recent opinion from the King’s Bench for Saskatchewan, South West Terminal Ltd. v. Achter Land & Cattle Ltd., [2023] SKKB 116 (Can.), the court had to decide whether a thumbs-up emoji (👍) constituted a “meeting of the minds” sufficient to form a contract. South West Terminal Ltd. (SWT) was a grain distributor while Achter Land & Cattle Ltd. (Achter) was a grain farm. Achter had a long-standing relationship selling grains to SWT. The pattern of business dealings between the two companies showed that SWT would often send purchase contracts to Achter (sometimes by taking a photo of the contract and texting it to Achter) and ask for confirmation. Achter would send short responses such as “looks good,” “ok,” or “yup.” The court found that the parties clearly understood these short responses to be confirmation of the contract, because Achter would shortly after deliver the purchased grains.

In March 2021, SWT sent a text message indicating an interest in buying flax from Achter. SWT then called Achter and confirmed Achter’s interest in providing the flax and that SWT would send the contract via text message. SWT then sent the contract via text message and asked Achter to “please confirm flax contract.” Achter responded with “👍.” Achter never delivered the flax, and SWT sued. Achter argued that the “👍” was merely an acknowledgement of receipt of the contract. The court found that the parties’ course of dealing, and the fact that Achter had no follow-up communications with SWT about the contract weighed strongly in favor of viewing the emoji as acceptance of the contract. The court addressed Achter’s slippery-slope argument, adding “this Court cannot (nor should it) attempt to stem the tide of technology and common usage—this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like.”

As South West shows, using emojis as evidence can be complicated and controversial, as emojis do not have set meanings and can mean different things based on the context or the individual using the emoji. But as the court noted, emojis are the way of the world now, and it will be interesting to see the ways in which courts and the rules of evidence evolve to account for them. Practitioners should remind their clients to be careful in their emoji usage—as a single emoji might just form a contract!