Texting thumbs-up emoji in response to a question costs Sask. farmer $82K in contract case

A Saskatchewan judge says an emoji can amount to a contractual agreement and ordered a farmer to pay more than $82,000 for not delivering product to a grain buyer after responding to a text message with a thumbs-up image.

The Court of King’s Bench decision said a grain buyer with South West Terminal sent a text to farmers in March 2021 saying that the company was looking to buy 86 tonnes of flax for $17 per bushel to be delivered in the fall.

The buyer, Kent Mickleborough, later spoke with Swift Current farmer Chris Achter on the phone and texted a picture of a contract to deliver the flax in November, adding “please confirm the flax contract.”

Achter texted back a thumbs-up emoji. But when November came around, the flax was not delivered and the prices for the crop had increased.

The screen grab says what sets this case apart is the use of a thumbs up emoji and what that means in the context of the specific facts of this lawsuit.
A screen grab from the Court of King’s Bench decision that states the use of a thumbs-up emoji could amount to a contractual agreement. (CanLII)

Mickleborough said the emoji amounted to an agreement because he had texted numerous contracts to Achter, who previously confirmed through text messages and always fulfilled the order.

But the farmer argued that the emoji indicated only that he’d received the contract in the text message.

“I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract,” Achter said in an affidavit to court.

“I did not have time to review the Flax Contract and only wanted to indicate that I did receive his text message.”

Justice Timothy Keene said in his June decision that the thumbs-up emoji did meet signature requirements and therefore the farmer breached his contract.

WATCH| Texting the thumbs up emoji in response to a question costs Sask. farmer $82K:

Texting the thumbs up emoji in response to a question costs Sask. $82K farmer

A Swift Current, Sask. judge has ordered a farmer to pay $82,000 for the use of an emoji. It comes after court documents show he failed to make a delivery to a grain buyer.

The judge pointed to a Dictionary.com definition of the thumbs-up emoji, which said it is used to express assent, approval or encouragement in digital communications.

This court cannot (nor should it) attempt to stem the tide of technology and common usage.-Justice Timothy Keene

“This court readily acknowledged that a [thumbs-up] emoji is a non-traditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature,”‘ Keene wrote in his decision.

Achter’s lawyers argued that allowing an emoji to act as a signature or acceptance for contracts would open the flood gates for cases interpreting the meaning of the images.

Keene’s decision noted the case is novel, but the judge said emojis are now commonly used.

“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,” Keene said.

Decision correct: dispute resolution lawyer

Jason Lee, a Toronto-based lawyer who specializes in complex dispute resolution, says from a legal perspective, he thinks the judge’s decision is right.

That’s because the court depends on the most common use of a word — or in this case, emoji, said Lee, who has worked on many cases involving digital communication.

He referred to Emojipedia, which states a thumbs-up indicates approval.

“If you were to say to me, ‘Let’s go out for dinner tonight, and I’ll meet you at this restaurant at this time,’ and I send you a thumbs up[-up] emoji, what does that mean?” Lee said.

“It means I’m going to meet you at the restaurant at that time.”

Man speaking on zoom from his home office
Toronto lawyer Jason Lee specializes in complex dispute resolution and has worked on many cases involving digital communication. (Zoom)

Lee added if someone is using an emoji in a context different from its normal use, the person should clarify that at the time of the text.

Although digital communication has changed a lot of things, Lee said some basic legal principles haven’t changed in centuries.

For example, he pointed to the Statute of Frauds, which dates back to the 1600s. Many people at that point were illiterate, so the statue said that drawing a squiggle, making a thumbprint mark or any other indication that someone agreed to a document amounted to a signature.

“People don’t [always] understand the consequences of digital communications, but they’re the same as any other form of communication. You’re bound by what you write. Even if it’s an emoji, it’s a mark,” Lee said.

“That mark can be relied on in a court as your consent to an agreement and bind you to that agreement.”

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