{"id":6718,"date":"2023-08-03T10:33:05","date_gmt":"2023-08-03T14:33:05","guid":{"rendered":"https:\/\/perlaw.ca\/?p=6718"},"modified":"2023-08-09T10:32:52","modified_gmt":"2023-08-09T14:32:52","slug":"how-one-unfortunate-emoji-cost-a-business-owner-82200-21","status":"publish","type":"post","link":"https:\/\/perlaw.ca\/fr\/2023\/08\/03\/how-one-unfortunate-emoji-cost-a-business-owner-82200-21\/","title":{"rendered":"How one unfortunate emoji cost a business owner $82,200.21"},"content":{"rendered":"
\n
\n

Early in\u00a0<\/span>June,<\/span>\u00a0the\u00a0<\/span>Court of King\u2019s Bench for Saskatchewan\u00a0<\/span>made\u00a0<\/span>headlines when it\u00a0<\/span>handed down<\/span>\u00a0<\/span>a<\/span>n<\/span>\u00a0<\/span>$82,200.21<\/span>\u00a0<\/span>judgement\u00a0<\/span>against\u00a0<\/span>Achter Land & Cattle Ltd.<\/span>\u00a0(\u201c<\/span>Achter<\/span>\u201d)<\/span>\u00a0<\/span>f<\/span>or the breach of a<\/span>\u00a0flax purchase contract<\/span>.<\/span><\/p>\n

Normally,\u00a0<\/span>one wouldn\u2019t expect\u00a0<\/span>a failure of<\/span>\u00a0flax\u00a0<\/span>delivery\u00a0<\/span>to capture the\u00a0<\/span>spotlight, but<\/span>\u00a0<\/span>South West Terminal Ltd. V.\u00a0<\/span>Achter Land & Cattle Ltd.<\/span>\u00a0(\u201c<\/span>South West<\/span>\u201d)<\/span>,<\/span>\u00a0<\/span>had one unusual feature:<\/span>\u00a0<\/span>the Court held that\u00a0<\/span>Achter\u00a0<\/span>bound itself to a contract by texting a\u00a0<\/span>thumbs-up emoji<\/span>\u00a0to\u00a0<\/span>S<\/span>outh\u00a0<\/span>W<\/span>est\u00a0<\/span>T<\/span>erminal Ltd. (\u201c<\/span>SWT<\/span>\u201d)<\/span>.<\/span><\/p>\n

The judgement\u00a0<\/span>has led to concerns about\u00a0<\/span>accidentally\u00a0<\/span>accepting contracts<\/span>\u00a0through the\u00a0<\/span>flippant use of\u00a0<\/span>emojis \u2013 but how valid is this fear?\u00a0<\/span>This article will examine the current law of contract formation<\/span>\u00a0and\u00a0<\/span>how<\/span>\u00a0<\/span>South West\u00a0<\/span>wi<\/span>ll impact that law<\/span>.<\/span><\/span><\/p>\n

How do courts decide that a contract has been formed?<\/span><\/h2>\n

At first glance, it may be of concern that Achter was bound to a contract that it\u00a0<\/span>had never signed. However,<\/span>\u00a0<\/span>subject to some exceptions, a\u00a0<\/span>signature or even a written document are not necessary<\/span>\u00a0for a Court to find that there is a binding\u00a0<\/span>agreement between two parties<\/span>.<\/span><\/p>\n

A binding contract will exist where\u00a0<\/span>the\u00a0<\/span>following\u00a0<\/span>common law requirements are satisfied<\/span>:<\/span><\/p>\n

    \n
  1. There\u00a0<\/span>is offer and acceptance<\/span>;<\/span><\/li>\n
  2. There is\u00a0<\/span>certainty as to the<\/span>\u00a0essential<\/span>\u00a0terms of the agreement;<\/span><\/li>\n
  3. There is mutual consideration<\/span>, meaning that both parties are receiving some<\/span>thing<\/span>\u00a0from the contract;<\/span>\u00a0and<\/span><\/li>\n
  4. There is\u00a0<\/span>an intention by the parties to create<\/span>\u00a0a\u00a0<\/span>legal relationship<\/span>.<\/span><\/li>\n<\/ol>\n

    According to common law,\u00a0<\/span>a contract does not come into existence until there has been a definite offer and an unconditional acceptance of the offer communicated to the offeror.<\/span><\/span><\/span><\/p>\n

    An acceptance may be communicated in any number of ways<\/span>\u00a0through\u00a0<\/span>other means such as a\u00a0<\/span>verbal communication\u00a0<\/span>of acceptance\u00a0<\/span>or through a party<\/span>\u2019s conduct.<\/span><\/p>\n

    The test for whether an offer has been accepted\u00a0<\/span>is not whether a party intended to accept the offer. Rather, the test\u00a0<\/span>is whether an objective third party<\/span>\u00a0in the position of the offeror would conclude<\/span>\u00a0that their offer had been accepted by the other party.<\/span><\/span><\/span><\/p>\n

    In rare cases<\/span>, a party\u00a0<\/span>may<\/span>\u00a0accidentally accept and be bound by a contract if the<\/span>ir conduct was such that<\/span>\u00a0the<\/span>\u00a0offering party could reasonably conclude that they have accepted the contract.<\/span><\/p>\n

    Will<\/span>\u00a0<\/span>South West\u00a0<\/span>change the way contracts are formed?<\/span><\/h2>\n

    While\u00a0<\/span>the use of an emoji to communicate acceptance is a novel issue<\/span>, under Canadian<\/span>\u00a0common law there is no principled reason why an emoji could not\u00a0<\/span>be<\/span>\u00a0used to<\/span>\u00a0<\/span>communicate acceptance<\/span>\u00a0<\/span>in\u00a0<\/span>the right context.<\/p>\n<\/div>\n<\/div>\n

    \n
    \n

    SWT<\/span>\u00a0had texted a photo of the contract to Achter accompanied by the words \u201cplease confirm flax contract\u201d<\/span>, to which Achter responded with the impugned thumbs up emoji.<\/span><\/p>\n

    Achter<\/span>\u00a0argued\u00a0<\/span>that the<\/span>ir\u00a0<\/span>inten<\/span>t<\/span>\u00a0in sending the emoji was not to communicate acceptance, but rather to communicate\u00a0<\/span>receipt of<\/span>\u00a0the contract.<\/span><\/span>\u00a0<\/span>However, the question i<\/span>s not what Achter intended, but rather whether\u00a0<\/span>SWT<\/span>\u00a0could reasonably assume that the emoji was meant as an acceptance.<\/span><\/p>\n

    Critically,<\/span>\u00a0the parties had a history of dealing with one another<\/span>\u00a0through similar text exchanges. When the Court considered\u00a0<\/span>these\u00a0<\/span>previous exchanges, a clear pattern emerged where\u00a0<\/span>SWT<\/span>\u00a0would\u00a0<\/span>text a photo of a contract and ask Achter to confirm,\u00a0<\/span>and<\/span>\u00a0Achter would respond with something to the effect of \u201cLooks good\u201d,\u00a0<\/span>\u201cOk\u201d, or \u201cYup\u201d.<\/span><\/span><\/span><\/p>\n

    Each time<\/span>, Achter performed its obligations with no further indication of acceptance.\u00a0<\/span>In this context, the Court concluded that it was objectively reasonable for\u00a0<\/span>SWT<\/span>\u00a0to interpret a thumbs up emoji as acceptance of a contract.<\/span><\/p>\n

    South West<\/span>\u00a0<\/span>may feature a novel dispute, but that dispute was resolved\u00a0<\/span>through existing<\/span>\u00a0<\/span>common law principles\u00a0<\/span>relating to the\u00a0<\/span>acceptance of contracts.<\/span><\/p>\n

    The case<\/span>\u00a0serve<\/span>s<\/span>\u00a0as an important reminder that\u00a0<\/span>businesses should\u00a0<\/span>always\u00a0<\/span>be mindful of the way that their conduct could be interpreted by\u00a0<\/span>the<\/span>\u00a0parties that they are negotiating with.<\/span><\/p>\n

    Businesses in the habit of making informal or verbal agreements\u00a0<\/span>run the risk of inadvertently\u00a0<\/span>entering into binding agreements\u00a0<\/span>through their conduct.<\/span><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

    Early in\u00a0June,\u00a0the\u00a0Court of King\u2019s Bench for Saskatchewan\u00a0made\u00a0headlines when it\u00a0handed down\u00a0an\u00a0$82,200.21\u00a0judgement\u00a0against\u00a0Achter Land & Cattle Ltd.\u00a0(\u201cAchter\u201d)\u00a0for the breach of a\u00a0flax purchase contract. Normally,\u00a0one wouldn\u2019t expect\u00a0a failure of\u00a0flax\u00a0delivery\u00a0to capture the\u00a0spotlight, but\u00a0South West Terminal Ltd. V.\u00a0Achter Land & Cattle Ltd.\u00a0(\u201cSouth West\u201d),\u00a0had one unusual feature:\u00a0the Court held that\u00a0Achter\u00a0bound itself to a contract by texting a\u00a0thumbs-up emoji\u00a0to\u00a0South\u00a0West\u00a0Terminal Ltd. (\u201cSWT\u201d). The judgement\u00a0has […]<\/p>\n","protected":false},"author":3,"featured_media":6719,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"wds_primary_category":0,"wds_primary_expertise_area":0,"footnotes":""},"categories":[82],"tags":[186,188,187],"class_list":["post-6718","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-publication","tag-business","tag-emoji","tag-law","expertise_area-business-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/6718","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/comments?post=6718"}],"version-history":[{"count":2,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/6718\/revisions"}],"predecessor-version":[{"id":6722,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/6718\/revisions\/6722"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/media\/6719"}],"wp:attachment":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/media?parent=6718"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/categories?post=6718"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/tags?post=6718"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}