A majority decision of the Court of Appeal for Saskatchewan agreed with the judge in the lower court that a text message containing a thumbs up emoji 👍 satisfied the signature requirments in the Canadian The Sale of Goods Act, RSS 1978 which requires “some note or memorandum in writing of the contract … made and signed by the party to be charged”.
The defendant was a farming corporation ALC and the claimant was a commodites business SWT. SWT had purchased grain from ALC through 15 to 20 deferred delivery grain contracts since about 2012. In this instance SWT prepared a document on its standard form which had been used by the parties before, containing the specific details on the front page and the general terms and conditions on the reverse. SWT signed the document with a manuscript wet ink signature on the front page. The signatory took a photograph of the front of the double-sided document using his cellphone and sent the photograph via text message to the owner and operator Mr Achter of ALC. Accompanying the photograph was the message “Please confirm flax contract”. Mr Achter replied with a text messages that contained only a thumbs up emoji with no accompanying text. The text message included the emoji and Mr Achter’s cellphone number and other identifying information (metadata). The parties had previously entered into text message contracts which had been assented to by Mr Achter using, on three different occassions, the words “looks goods”, “okay” and “yup”. The court found that the parties clearly understood the curt words were meant to be confirmation of the contract and the proof was in the pudding because Mr Achter had delivered grain as contracted in these instances.
A contract is formed where there is an offer by one party accepted by the other with the intention of creating a legal relationship. The text message was “an action in electronic form” for the purposes of the Canadian Electronic Information and Documents Act, 2000.
The court relied on an online dictionary which provided that a thumbs up emoji is “used to express assent, approval or encouragement in digital communications, especially in Western cultures”. Although the lower court was “not sure how authoritative” the dictionary was, the definition comported with the court’s understanding from every day use and was accepted by the appeal court.
The appeal court found:
“Bringing all of this together, while a thumbs up emoji is certainly capable of being a message of mere acknowledgment of receipt, the question that the judge was called to confront was whether a reasonable observer, knowledgeable of the relevant circumstances would conclude that Mr Achter’s use of the thumbs up emoji constituted acceptance of the contract with the intention to create a legal relationship. … The judge did not err in finding that ALC and SWT intended to enter into a contract when Mr Achter replied to SWT’s texts with a thumbs up emoji.”
The signature in this case was the text message comprised of both the emoji and the metadata accompanying it. This metadata included Mr Achter’s unique cellphone number and other information that meant that, when Mr Achter’s text message containing the thumbs up emoji was received, it was identified as having been sent by Mr Achter.
On these facts, no different conclusion would be reached in South African law. It does not mean that every thumbs-up emoji creates a contract. The words, context and purpose are always important in finding whether a contract exists and what its meaning may be. As any woodworker will tell you, be careful where you put your thumb.
[Achter Land & Cattle Limited v South West Terminal Limited, 2024 SKCAÂ 115 (16Â December 2024)]