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On June 8, 2023, the Court of King’s Bench of Saskatchewan
released its decision of South West Terminal Ltd v Achter
Land, 2023 SKKB 116 (“Achter“), in which
the Court held that an individual sending a thumbs up emoji
“👍” to someone else amounted to the acceptance of
a contract.
In Achter, the Plaintiff, South West Terminal Ltd.
(“SWT”), routinely purchased grain and crops from
multiple farms, including Achter Land & Cattle Ltd. (the
“ALCL”).
SWT and ALCL had a history such that SWT would call ALCL and ask
for a specific amount and type of grain at a certain price. After
the amount, the type, and the price were agreed upon, SWT would
send a text message to ALCL with the drafted contract and state:
“please confirm terms of durum contract”. The ALCL would
respond to those text messages with, “looks good”,
“ok”, or “yup”, and then ALCL would deliver the
grain as contracted. Following this, SWT would pay ALCL the amount
owed pursuant to the contract.
In March 2021, during a similar telephone call between SWT and
ALCL, SWT agreed to purchase a certain amount of flax from ALCL for
a certain price to be delivered in November 2021. SWT then sent the
drafted contract through text message to ALCL with: “please
confirm flax contract”.
Following this, ALCL responded with a thumbs up emoji
“👍”. However, in November 2021 when it came time
to have the flax delivered to SWT, ALCL never completed the
contract. By then, the price of flax had increased substantially,
and SWT was required to purchase flax from a third party at a much
higher price. As a result, SWT initiated an action against ALCL for
breach of contract and sought damages against ALCL.
Before the Court, ALCL gave evidence that the thumbs up emoji
was only used to indicate that the contract was received from SWT,
and not that the terms of the contract were accepted. Instead,
ALCL’s evidence was that it was expecting a completed contract
to be faxed or e-mailed following sending the text message.
However, ALCL did not follow up with SWT regarding the
contract.
Ultimately, the Court held that a contract had been reached and
agreed to between SWT and ALCL that was binding on ALCL and, as a
result of ALCL’s failure to provide the flax as agreed upon,
ALCL was in breach of the contract. The Court reached this
conclusion by reasoning that, to a reasonable bystander knowing all
the background, the bystander would conclude that the parties had
come to a “meeting of the minds” or a mutual agreement
about the terms of the contract. Further, the Court held that,
under The Electronic Information and Documents Act, 2000,
SS 2000, c E-7.22, the emoji was a valid way to express acceptance
of a contract.
While this case is not binding on courts outside of the province
of Saskatchewan, it is persuasive and signals a modernization of
how a contract is permitted to be accepted.
Originally published August 9 2023
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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