In the recent decision of South West Terminal Ltd v Achter Land and Cattle Ltd, the King’s Bench of Saskatchewan accepted the thumbs up emoji 👍 as an electronic signature and represented the acceptance of a contract.
Summary of the Case
The Plaintiff is a grain and crop inputs company that had a long-standing relationship with the Defendant, a farming corporation. The Plaintiff had purchased grain from the Defendant through various grain contracts since approximately 2012.
The contract in dispute occurred on March 26, 2021, when the Plaintiff received a call from the Defendant following the Plaintiff’s advertising for a flax contract. After a discussion with the Defendant, the Plaintiff drafted a contract for the Defendant to sell 86 metric tonnes of flax to the Plaintiff at a price of $17 per bushel with delivery set to be in November of 2021. The Plaintiff’s representative applied his ink signature on the contract, took a photo of the contract using his cell phone, and texted this photo to the Defendant’s representative with the message “Please confirm flax contract.” The Defendant’s representative texted him back a thumbs up emoji. The Defendant did not deliver the flax and the trading price of flax in November increased to $41 per bushel.
The Plaintiff successfully sued the Defendant for $82,200.21 plus interest and costs for breach of contract.
In Court, the Defendant argued that there was no contract formed as his thumbs up emoji was confirming the receipt of the contract and not his agreement to the contract. The Plaintiff argued that the thumbs up emoji was similar to agreed upon contracts between the two parties in the past, where the contracts were sent in the same way and between the same representatives as the contract in dispute. In those instances, the Defendant had responded with “ok”, “yup”, and “looks good” in agreement to the contract instead of the thumbs up emoji. In these instances, the flax was delivered.
The Court agreed with the Plaintiff in determining that the circumstances leading up to the disputed contract, with the multiple previous contract negotiations resulting in contracts, supported the Plaintiff’s position.  In this case the Defendant okayed or approved the contract just as they had previously done except this time they used a thumbs up emoji.
While the Court acknowledged that an emoji is a non-traditional means to sign a document, in these circumstances this was a valid way to convey the two purposes of a signature – to identify the signature by using the Defendant representative’s unique phone number (used in the text exchange) and to convey acceptance of the contract terms.
While the Court agreed that the case was novel, at least in Saskatchewan, the Court stated that it cannot and should not attempt to stem the tide of technology and common usage.
Key Takeaways
The circumstances of the disputed contract and the prior relationship between the two parties was an integral part of determining that the thumbs up emoji conveyed acceptance of the contract terms in this case. Â A thumbs up emoji might be interpreted as an electronic signature if it is supported by a pattern of behavior to convey acceptance and if it is possible to clearly identify who sent the emoji.
