The old principle of being careful of what you say holds water in a Canadian case of South West Terminal Ltd. v Achter Land & Cattle Ltd., 2023 SKKB 116. However, it is not so much what Achter said but more what emoji he sent back when presented with an already partially signed contract. A contact was held to have come into force and execution on Mr. Achter having send a “Thumbs-up” emoji to South West Terminal, which begs the question of what should businesses look out for when communicating with potential clients.

Conduct and communication are principle points of departure when concluding business. Contracts could be formed on a handshake, on a lengthy bundle of papers, or in this case on a single “thumbs-up”. The South West Terminal case should be looked at more closely before conclusions should be jumped to, and in that the important points to note are:

  1. South West Terminal had been in business with Achter on previous occasions during which they concluded business. They had a history of conducting business together;
  2. South West Terminal and Achter on multiple occasions concluded business via text message where South West would send a contract and ask confirmation, which was counter-confirmed by Achter with a “Looks good.” or “yup”;
  3. On these previous occasions, both parties would continue with business as usual and respect their roles in the contract, without issue;
  4. This matter fell under adjudication of the Canadian Court of Saskatchewan Court of Kings Bench, which relied on tests to confirm liability formulated from previous cases. The centre point test was “what the informed objective bystander would understand” from the conduct of the parties;
  5. The Court formed its decision on what the informed objective bystander would understand the emoji to represent in the context of these specific parties and taking into account their previous history;
  6. South West Terminal had acted as if the contract had been agreed to, and when the time came for delivery of the products, Achter failed to deliver. South West Terminal claimed damages arising from the failure to comply with contractual obligations.

In the modern era we live in, communication through text messages or messenger apps have become a speedy and efficient way of conducting business and receiving feedback. This is likened to the (now quite outdated method) method of sending contracts signed and countersigned through fax machines. It is the prerogative of businesses to grow with the times, and no fault can be established in finding innovation, but innovation should come with consideration of what it entails.

The Law of Contract has formed around theories and prescripts for centuries. One of the many bases on which the law has found foundation is that where competent individuals had come to form a consensus or were Ad idem to the terms of the contract, a contract had come into force. This falls in category with the South West Terminal case in that the test of whether an objective bystander would have come to the reasonable conclusion that a contract had formed.

The test was applied in the positive. Taking into consideration the long-standing history of the parties and the manner in which they had come to conclude contract previously, this was “par for the course” of their usually short and to the point communications. A further test was applied as to what the usual meaning attributed to the emoji would have been. The Court took to the dictionary (the newer versions of which include a definition for the Thumbs Up emoji) and found that the meaning is “The thumbs-up emoji is used to express assent, approval, or encouragement in digital communications, especially in Western cultures.”

Looking back, if Achter had rather sent a “thumbs down” emoji, the case would have gone very differently. The Court recognised that it would objectively and reasonably be perceived that Achter meant approval and confirmation of the contract when he had sent the “thumbs up”.

When it comes to contracts, clear communication is of great importance. What one party tells the other party will necessarily cause a reaction. If you find disapproval to a contract, then such disapproval should be made clear.