Canadian judge says thumbs-up emoji amounts to contract acceptance
theglobeandmail.com
theglobeandmail.com
> “I did not have time to review the Flax Contract and merely wanted to indicate that I did receive his text message.”
That is often how I use it on facebook messenger since it's so conveniently placed.
It's fine that a verbal agreement is binding, but you should have to utter the sentence "I agree with the terms" or when asked a question with a yes/no answer, reply with "Yes".
In that context, I think 99% of people would take that as confirmation of the contract rather than an "I got your message" response.
But it does underline your point, which is correct: when it comes to contracts, it's wise to be as painfully clear as possible.
I think it was reckless of the buyer to assume that the contract was approved and to not ask and confirm that the contract was agreed to.
I do agree with this. It's bad business practice.
I think people are waaaayyy to confident that their perspective sits in the 99% majority. I realize you're being hyperbolic, but I'd expect this percentage to be closer to 50% myself.
Imagining some counterfactual in which he said something he didn't actually say is a nonsensical way of determining his intent.
Has no one else encountered older siblings/parents/grandparents misusing emojis accidentally just for the sake of keeping up on the social treadmill?
I sure as hell have.
It's a common enough thing that there is an 'It's Always Sunny in Philadelphia' episode that partially revolves around the misinterpretation of emoji meanings.[1]
The problem here is that a thumbs up emoji doesn't mean yes. It can also mean "got it." When people send me huge documents I often send a thumbs up long before opening and reading the document.
Like, surely, in that case you'd treat a thumb up as a dangerous message to send as an ACK? :-)
As well, do you follow your thumbs up eventually with something else? Because if I read it correctly, farmer had from March to November to follow-up on the thumbs up ... as well, there was previous precedent with that exact farmer, which makes it hard to argue "Oh, those previous times I meant thumbs up as acceptance of contract, but in this case I meant is as just an acknowledgment" :-/
A thumbs up is definitely a dangerous reply in the same way that OK is, but people use it that way anyway. And while it was dumb on his part to be unclear, it was also dumb on the buyer’s part to interpret such an unclear answer as an acceptance.
As to not answering, people forget to respond all the time.
If you paw around a bit in law you'll find judges sometimes going out of their way to misconstrue extremely explicit statements to reach the conclusion they want to reach. Being explicit can help, but there's no way to be 100% sure.
Well, i'm wrong enough in that i don't want something i say to be taken to court when i could have, easily, been more explicit. "Wrong" in the sense that it leaves myself open to needless outcomes.
I generally want to avoid judges at all cost, heh.
Me: "Want to goto the movies?"
You: "Ok".
I would apply the same rationale to a thumbs up. You are saying, ok. Others may disagree.
Merely saying "This is two for x." is a statement, not a question.
There's an "OK" emoji, which further disambiguates this.
“I’ve attached a list of movies for you to go over. Do you want to go see any of them this weekend?”
“[thumbs up]”
If you message requires any kind of action to be taken rather than an immediate answer it becomes very ambiguous.
> 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 flax contract.”
> Achter texted back a thumbs-up emoji. But when November came around, the flax was not delivered and prices for the crop had increased.
Combine this with their past communication in the same manner and it seems pretty clear cut that both parties knew what they were getting into.
It’s easy to get excited and want to cry foul over this…but even my own limited understanding of contract and trade law (which is not of Western import) makes me pause due to the tremendous nuances involved in this case.
This is compounded further when we consider the technological aspects (discussing legally binding matters via text in lieu of more sophisticated/trustworthy means).
In reality, if the farmer put just a little bit more effort in communicating on a business level (beyond “yups” and “emojis”) or if the buyer demanded more from the buyer (“I need to know what you mean”), this could have all been avoided. This is especially so if both parties had a better understanding of the law or greater empathy for one another in a business sense.
Hypothetical response: "Got the contract. Will send a signed copy ASAP!"
Did this accept and sign the contract? What if the sender of that text reads the contract before signing and realizes a mistake, misunderstanding, etc.? That seems to be the defense here, although they lost.
Do we need to start adding AI of text messages that detect when one may be accidentally accepting legal obligations and force the person to recite a hymn and hit their forehead with their phone in order to send a thumbs-up? ~Pie Jesu domine, dona eis requiem~
For a contract you need an exhchange of value in both directions and an agreement. It can be completely verbal and enforceable if you can prove that both parties knowingly and reasonably consented to it.
I think the requirements for consent go up as the agreement becomes more exploitive/one sided though.
That makes it easier to prove you have a valid contract, but even just a verbal agreement can be an enforceable contract.
I think it would. Verbal and "casual" contracts are binding in the US. The reason it's advised not to do business that way is the difficulty in proving the contract was agreed to in court, not that such contracts aren't valid.
It's just been my experience probably based on the best practices you describe that I always had to have a notary and physical ID for anything involving significant liabilities. But even significant liabilities now seem to just be digital which seems risky to me. Perhaps Covid pushed banks into accepting those riskier liabilities.
I have entered into verbal contracts and haven't had any real issues with them. I strongly prefer written contracts, though, because the process of hashing out a contract clarifies assumptions and misunderstandings that may not be apparent to each party until they see things put down in black and white.
The value of a contract is that it makes the terms very clear to both parties instead of relying on the other party understanding what I "obviously" meant (and vice versa).
That said, I also noticed something over the decades: I can tell the level of trust I have with a party based on how thick the contract is. If we don't trust each other, the contract will get very thick as we each try to make sure that there is no loophole the other can take advantage of.
With a high degree of trust, the contract tends to be much more brief. With a very high degree of trust, the contract can literally be a talk over coffee and a handshake.
So it all depends.
Evidence of the content and acceptance of contracts that aren’t signed writings can be hard to establish, but this very case shows that it is not impossible, especially when they aren't literally oral contracts (“verbal” just means “in words”; written contracts are verbal, but not oral, agreements.)
https://www.upcounsel.com/three-key-elements-of-a-binding-co... explains the basics. At its heart:
1. There must be an offer.
2. There must be evidence that it was accepted.
3. There must be consideration - each side potentially gets something of value to them.
If all of those elements exist, it is a legally binding contract under Common Law. (Unless, of course, some law says that it isn't. For example you can't be held to a contract to break the law, and verbal contracts are often not binding in real estate.)
I am not a lawyer, this is not legal advice.
No, in the US as is the case in most common law countries, as long as their is evidence supporting offer and acceptabce of an agreement with intent to be bound, consideration, etc., the form of either the agreement or the offer and acceptance of the agreement isn’t important, other than specific exceptions requiring particular form for certain kinds of contracts to be valid.
> I would expect a public notary to show up with hard copies for me to sign and photo-copy my state ID but that is not consistent any more, or at least since Covid.
The federal E-Sign Act was passed in 2000 (though COVID waa a big boost in people taking advantage of it), but that made electronic signatures valid where the law required signatures for a contract, it wasn’t necessary for the general case of contract law, where signatures on a written agreement are nice to have evidence of the content of the agreement and the offer and acceptance thereof, but not in any way required.
I suggest we making binding contract acceptance with another single character, maybe "1"
This farmer was playing loose with risk management and wanted someone to eat his $25,000 mistake (higher $82K later crop value minus original approx $57K contract value at $17/bu for 86 tonnes).
The more I think about this, the more I'm convinced that this farmer completely forgot about the sale agreement and this argument about the emoji was a post-hoc invention by his lawyer to try and weasel out of paying the terminal $82,000. This amount of flax is likely grown on about a quarter section in Saskatchewan, or 160 acres. The average grain farm size is almost 1,800 acres, so this size would be less than 10% of the total harvested area, and many farms are double and triple that size. Easy to forget about six months after the text exchange.
....
> I find this to be very similar to the durum contracts referred to above including Kent’s use of the phrase “Please confirm flax contract” (the only difference being the use of the word flax instead of the word durum) and this time instead of words like “ok”, “yup” or “looks good” being texted by Chris – a commonly used <thumbs up> emoji was texted by Chris.
This is the key finding in the Judgement[1] for how the judge resolved the ambiguity, including important context missing from TFA. The parties had done business together for ten years, and had executed contracts via text message on three previous occasions. In all three previous cases, the seller responded with something terse and then delivered on the contract.
[1] https://www.canlii.org/en/sk/skkb/doc/2023/2023skkb116/2023s...
Yes, its a vulnerability, its also a serious legal wrong in its own right (on top of the trespass to chattels you need to do to accomplish it.)
The buyer was concerned about this transaction, it seems - they sent a message asking:
“please confirm flax contract”
In response they did not get a contract. They got a thumbs up. What's next, text a thumbs up to a car salesman who is trying to get you to agree to a deal and now you've signed the contract? Contracts have much more in them than a text message could convey. Perhaps I'm being to legalistic, but this is a court matter.
Lets I buy some service from you and we sign some one-off contract. The next year I text you ‘same again please’ - you provide the same service to me. A reasonable person would conclude that there is an implied contact to provide the services under the terms perviously agreed. I can’t argue that I don’t have to pay because we didn’t sign a new set of terms.
Or you give me a quote and terms to build a house. If I let you start building it for me (and you can prove that I gave that instruction) there is an implied contract based the proposed terms even if we don’t sign any paperwork.
In the judgement here it seems to be a simpler assertion that the thumbs up in the context of asking about previously sent terms constitutes acceptance.
This never would have been considered a contract in a normal scenario.
I think you have a Hollywood-system mindset, not a US-system mindset. Just because it doesn't have a signature on it doesn't mean it isn't a contract
Agreement can be given in a number of ways. Signatures and official documents are a way to safeguard said assent, but in the case of ambiguity courts have broad latitude to interpret thing in the right context.