Remember this case? In Canada, an appellate court dismissed an appeal, which meant that the thumbs-up emoji still constitutes contract acceptance.

This ruling involved Appellant Achter Land & Cattle Ltd. (ALC) and Respondent South West Terminal Ltd. (SWT). SWT, a grain buyer, and ALC, a farming corporation, which had a history of entering into contracts for the sale of grain via text messages.

In March 2021, Kent Mickleborough, a representative of SWT, sent a text message to producers, including Chris Achter of ALC, offering to buy flax at a specific price and delivery date. Achter and Mickleborough had a phone conversation about the offer, after which Mickleborough texted Achter a screenshot of the front page of a “Deferred Delivery Purchase Contract,” filled in with the agreed terms.

Mickleborough’s text included the phrase “Please confirm flax contract.” Achter responded with a “thumbs up” emoji. When the delivery date arrived, ALC failed to deliver the flax, and SWT sued for breach of contract.

In June 2023, Justice Timothy Keene sided with Mickleborough, leaning on a Dictionary.com definition of the emoji, which states that “it is used to express assent, approval or encouragement in digital communications”.

Naturally, ALC appealed, arguing that the thumbs up emoji did not satisfy the signature requirement under The Sale of Goods Act, and that the contract was void for uncertainty as the terms and conditions were not fully communicated. SWT contended that the emoji constituted a valid signature under The Sale of Goods Act and that the contract was enforceable based on the parties’ previous dealings and the exchange of text messages.

In the ruling here last month, the majority of the court upheld the lower court’s decision, which meant that the thumbs-up emoji still constitutes contract acceptance.

They ruled that, in this particular instance, the thumbs-up emoji met the signature requirement of the Sale of Goods Act. The court considered the context of the communication, including past dealings between the parties where similar short confirmations via text had formed binding agreements.

The majority referenced the Electronic Information and Documents Act (EIDA) in their ruling, which allows for electronic signatures to satisfy statutory signature requirements. However, the majority clarified that EIDA doesn’t redefine what constitutes a signature; it merely permits electronic forms of signatures that fulfill the underlying legal requirements.

In rejecting the appeal, the majority stated:

“For the purposes of s. 6(1) of The Sale of Goods Act, a person may sign a note or memorandum of a contract for the sale of goods by affixing or associating a name or other mark of agreement on or with a document for a purpose and in a way that identifies its maker and signifies an intention to contract, with the expectation that the act of so doing will authenticate the document as being binding upon them. Mr. Achter’s use of the thumbs up emoji communicated his agreement to the terms of the contract proposed by Mr. Mickleborough with the expectation that ALC would be held to it. Because Mr. Achter sent that emoji in a text message from his personal cellphone, there was electronic data that he knew would identify him as the maker of the mark and communicate his agreement to the contract. His text message therefore signed the contract as surely as if he had printed the photograph that Mr. Mickleborough had sent to him and then written his name on that print copy and returned it to Mr. Mickleborough.”

However, there was a dissenting opinion, which agreed that a contract was formed but disagreed that the emoji satisfied the signature requirement. It argued that the signature requirement should not be rendered meaningless by equating a thumbs up emoji with a signature, emphasizing the need for a more formal indication of agreement to meet the statutory requirement:

“There is, on the other hand, nothing in the evidence that supports the conclusion that Mr. Achter’s use of his personal cell phone to send a text message means that he affixed his signature as the means of authenticating that agreement – which is, of course, the particular essence of the signature requirement. Indeed, he was responding to a text that had a space for him to sign – which he did not – and indicated on a previous occasion that he did not know how to sign on his cell phone. The fact that he used a thumbs-up emoji rather than the word ‘yes’ is irrelevant – in effect, it is a red herring – and weighs neither for nor against a finding that the signature requirement was satisfied. The same is true of the evidence that the parties repeatedly entered into contracts in essentially the same way in the past.”

Notably, the ruling is very specific to the facts of this case. The court repeatedly stressed the importance of context and the decision doesn’t imply that all emojis can form contracts. It will be interesting to see how a dispute like this would be ruled on in US courts.

So, what do you think? Are you surprised that the thumbs-up emoji still constitutes contract acceptance in this case? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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