3 min read

Contracts can be accepted in a variety of ways many of us are familiar with, from an informal handshake to signing on the dotted line. Now a court in Canada has ruled that even emojis can signal acceptance of a contract.

Background

That case saw a flax buyer sue a farming company after the buyer claimed the company failed to deliver a specific amount of flax seed. The company representative had received a text from the buyer to “Please confirm flax contract” and responded with “????”. The court ruled the ???? emoji is commonly used to express approval in digital communication and therefore, to an objective bystander, this would have signalled the contract was accepted by the company. In reaching that decision, the judge ordered the company to pay the buyer $82,200 in Canadian dollars, or about €55,700.

Application in Irish law

Under Irish law, it is possible a court could rule similarly. A contract is formed once there is an offer made and acceptance of that offer, consideration (a benefit or value given) and an intention by the parties to enter into an agreement.

There is no requirement that a contract, offer or acceptance be in writing, except in some limited circumstances. An offer is accepted when there is a final and unequivocal expression of agreement with the offer. This may sound very formal, but in fact it can be done in a variety of ways, or by actions. A person can be bound to the terms of a contract where they conduct themselves in such a way that a reasonable person would believe that that person intends to be bound by the contract.

Additionally, Irish law recognises electronic communications as a class of communications that can create and seal a contract. This even includes messages on social media applications like WhatsApp.

Substitute for written acceptance?

In addition, Irish courts do not look at the subjective intent of either party when forming a contract, similar to Canadian courts. Instead, Irish courts consider whether the words and the conduct of the parties are sufficient to lead a reasonable person to assume that the parties had reached an agreement. With the proliferation of emojis in everyday conversation, it is more likely that Irish courts could view their use as a substitute for written words and also rule that the average person would be familiar with their meaning, as the Canadian court did.

Note that acceptance in a form such as an emoji will likely depend on the facts surrounding the contract and case. For example, in the Canadian case, the company had a history of using short and simple responses, including “yup”, “looks good”, or “ok”, to agree to previous contracts. The judge specifically noted that the reasonable bystander would come to the conclusion the ???? emoji represented agreement because of these other, numerous instances. The same factual analysis would likely be undertaken if an Irish court was faced with a similar question.

The terms of the contract would still need to be clear enough or established by previous trading between the parties for a contract to be enforced. In this case, the buyer’s message to the farming company included a photo of the contract for the flax purchase, a form of contract that had been used before between the parties, with "Please confirm flax contract". This helped the buyer establish that all key terms for the purchase had been agreed.

Comment

While it is unlikely this single case in Canada will be determinative in concluding that every ???? will create a binding contract, it is a cautionary reminder for businesses to be careful when responding by informal email, text, actions or emojis in contractual discussions. This is because Irish contract law does not require a signature on a written contract for a binding agreement to be created. As the judge said "a ???? is a non-traditional means to 'sign' a document but nevertheless under these circumstances this was a valid way … to convey [defendant’s] acceptance of the flax contract." Sending a ???? can have serious legal consequences which could be ???? for you or your business.

For more information, please contact a member of our Technology team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

Wendy Hederman

Partner

+353 86 046 4404 whederman@mhc.ie

Philip Nolan

Partner

+353 86 812 4140 pnolan@mhc.ie