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The Courts

Should an Emoji Count As Confirmation of a Contract? (www.cbc.ca) 89

innocent_white_lamb shares a report from CBC News: In June, a Court of King's Bench judge ordered Swift Current farmer Chris Achter to pay more than $82,000 to a grain buyer with South West Terminal (SWT). The ruling stems from a text message when the buyer, Kent Mickleborough, asked Achter to confirm a flax contract that requested more than 85 tons of flax to be delivered in the fall at about $670 per ton. Achter responded with a thumbs-up emoji. The case hinges on whether the emoji confirmed the contract, or only confirmed receipt of it -- and whether an emoji can ever be used as a signature.

In his June decision ruling in SWT's favor, Justice Timothy Keene wrote, "This court readily acknowledges that a [thumbs-up] emoji is a non-traditional means to 'sign' a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a 'signature.'" Achter is now appealing that ruling.

"Our position is that the emoji cannot be a signature, basically because it does not convey the intention to be bound by an agreement the same as a normal signature would," said Jean-Pierre Jordaan, counsel for the defendant, in court on Tuesday. The counsel for SWT disputed that. "Can a text message chain, with a clear offer and -- in our submissions -- a clear acceptance by thumbs up emoji, constitute a note or memorandum signed by the party to be charged, pursuant to section six of the Sale of Goods Act?" counsel posed. "Our answer to that question is yes; there is no magic in a signature." The three appeal judges reserved their decision for an undetermined date.

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Should an Emoji Count As Confirmation of a Contract?

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  • by Calydor ( 739835 ) on Friday March 08, 2024 @05:12AM (#64299345)

    What about being made a verbal offer and just distractedly saying "Okay." Does that count as a signature as well? Because that's essentially what such a thumbs-up emoji amounts to, especially because the exact meanings of emojis remain so ambiguous and up to the individual.

    • by Anonymous Coward

      What about being made a verbal offer and just distractedly saying "Okay." Does that count as a signature as well? Because that's essentially what such a thumbs-up emoji amounts to, especially because the exact meanings of emojis remain so ambiguous and up to the individual.

      Well obviously an "okay" can count as acceptance to a contract. Not sure why you mention a signature specifically. Whether it does actually constitute acceptance is going to depend on the full facts but it's at the very least plausible. A nod of the head or physical thumbs up can be plenty too.

      • by pjt33 ( 739471 )

        Not sure why you mention a signature specifically.

        GPP obviously mentions a signature specifically because the judge of first instance mentioned signatures specifically in the ruling, and that's what the appeal is about. The interesting question is why the judge mentioned signatures specifically, because they don't appear to be mentioned specifically in the statute referenced by counsel.

        • by uncqual ( 836337 )

          I've not looked beyond the /. summary, but...

          Perhaps "signature" came up because a signature is what is used to validate that the person accepting a contract is, in fact, the person they claim to be. Traditionally this was a pen on paper (or stamp on paper) but now includes such things as digital signatures.

          When claiming that another party entered into a contract there are couple things, among others, that the person making the claim needs to show:

          (1) That the other party accepted the contract (vs. rejecte

    • by WarlockD ( 623872 ) on Friday March 08, 2024 @06:45AM (#64299445)
      This is more a justification for the lawsuit anyway. Here is part of the article
      South West Terminal is suing Achter Land and Cattle for breach of contract and damages.

      Mickleborough, a farm marketing representative with SWT, texted producers, including Achter and his father, Bob Achter, the afternoon of March 26, 2021. Bob called Mickleborough.

      According to court documents, Mickleborough then called Chris, drew up a contract with a delivery expected in "Nov," and signed the contract. Then he took a cellphone photo of the contract and texted it to Chris with the message "Please confirm flax contract."

      Chris responded with a "thumbs-up" emoji, documents say.

      By November, the price of flax spiked to about $1,614 per tonne. The flax SWT was waiting on never came.


      This is about t
      • by WarlockD ( 623872 ) on Friday March 08, 2024 @06:46AM (#64299449)
        Bleh, pressed submit to early. The contract was done and I bet they have done this kind of contract before. Achter Land and Cattle just didn't want to deliver the flax at the price they agreed and used this stupid reasoning.
        • by SeanNi ( 18947 )
          They absolutely had done this kind of contract before. (This according to other stories I have read on this case - I live in the general area so it's been in the local news a bunch.) This whole exchange was roughly on par with other exchanges they had done with contracts in the past, on several occasions going back years. Also: with Achter trying to claim that the thumbs up only indicated receipt of the contract, not acceptance of it, one would naturally expect that acceptance (or otherwise a reason why it
    • Semantics aside, I guess it depends on how the contract was sent, too. Was it delivered as an attachment to an email that had body "Here's the contract for you to return signed if you agree"? Or was the contract the whole body of the email? In the latter case, one could argue "okay" meaning an agreement with the contract.

      Then I guess it wasn't the first time these parties came to a contract. How was it concluded the previous times? Always with a simple "okay" in reply? Or was the "okay" in those previous ex

      • i think this is really about a dishonest supplier trying to hide behind shady vague indicators to treat as an affirmation when it benefits them or to deny when affirmations hurt. Someone called the supplier out on their bad faith and the supplier should absolutely be made to pay for trying to weasel out of it.

        The lesson: in contracts, be clear about your intent or expect to be challenged.

    • by skam240 ( 789197 ) on Friday March 08, 2024 @07:39AM (#64299565)

      In this specific case however a text response of "Yes" would have been enough to accept the contract so all the judge is really ruling on here is that a thumbs up emoji is an affirmation.

      Personally I think that's a fair ruling particularly since it was not followed up by a "yes" or "no" to the contract which is what would have happened if the thumbs up was meant as something else. Seems pretty clear to me what the intent of the emoji was.

      • Re: (Score:2, Interesting)

        by flink ( 18449 )

        I use thumbs up to mean, "saw your message", or "I'm looking into it", or "thanks", or "good job", or "cool story bro" all the time. None of those mean "I agree to be bound by this contract" or even "yes". And that's the problem with thumbs up. It's a super ambiguous emoji, even if you think an emoji can be used to sign a contract. There's both the checkmark, and the handshake, which would have been much more clearly and assent or agreement.

        • by skam240 ( 789197 )

          I use thumbs up to mean, "saw your message", or "I'm looking into it", or "thanks", or "good job", or "cool story bro" all the time. None of those mean "I agree to be bound by this contract" or even "yes

          Huh, seems like talking to you via text would confuse the hell out of me.

          Regardless though, if the emoji was meant as something else (as I said in my last post) it would have then been followed by a "yes" or "no" in regards to the contract. If the emoji was meant as an affirmation of the text being received then where was the proper reply to whether the contract was accepted or not?

        • by cmseagle ( 1195671 ) on Friday March 08, 2024 @09:22AM (#64299783)
          If I sent someone a text saying "want to meet for drinks at 5?" and they respond with a [thumbs-up] emoji to mean anything but "yes, see you at 5", I say I'd be justifiably peeved if they stood me up.
          • Agreed, as you asked a yes/no specific question and received a gesture in the affirmative.

            One could argue the same thing with this contract case, however agreeing to go for drinks at 5 is not a legal commitment. A contract is a legally binding agreement and thus requires an increased level of unambiguity.

            • , however agreeing to go for drinks at 5 is not a legal commitment
              In most countries it is a legal commitment. It is just not worth going to court over it.

              Would you want to meet at 5 at "Friend's Pub"?
              a) YES
              b) YES

              Would you like to marry that girl and you likewise marry that boy?
              a) YES
              b) YES

              Legally exactly the same thing. Only the long term consequences are usually a bit differnet.

          • by flink ( 18449 )

            Yes, but when you send someone a document to review a thumbs up can just as easily mean an acknowledgement of receipt. You should not take it as agreement with the contents.

        • I use thumbs up to mean, "saw your message"

          Messaging systems handle this for you. Please do not use a thumbs up in this way, you are only confusing other people.

          or "I'm looking into it", or "thanks", or "good job", or "cool story bro" all the time.

          Contextual language matters in a conversation. If I say "Yes" to you now, you should justifiably ask what I am talking about since the context is unclear. If I ask you to look into something and you give me a thumbs up I would accept it as an "I'm looking into it". If I provide you something I would accept it as a "thanks" or "good job".

          If I ask you a question with a yes or now outcome and y

          • There are countries where "thumbs up" traditionally means something completely differnet.

      • by ikegami ( 793066 ) on Friday March 08, 2024 @10:07AM (#64299863)
        One thing to keep in mind is that the person in question regularly used a thumbs-up emoji in this fashion. This was an factor in the judge's decision.
    • If someone makes a verbal offer, and you say âoeokayâ, yes, youâ(TM)ve entered into a contract. I have no idea why youâ(TM)d think that wouldnâ(TM)t count.

    • Imho, it is a signature, but the question becomes what they are signing; receipt of documents or agreement. I am with you that there is a degree of ambiguity, but that ambiguity should be determined by context, specifically all other contract elements: Offer, Acceptance, Consideration, Mutual Assent, Legal Capacity, Legality I expect mutual assent is going to be the decider here. If they took any steps what so ever towards trying to make this deal work, but then either failed to follow through or changed t
    • Thankfully the law is very clear about the elements of a contract: Offer, Acceptance, Consideration, Mutual Assent, Legal Capacity, Legality I say it is important to look at this in the context of those other elements, because it all comes down to whether they didn't realize this was an agreement, or if they later regretted the agreement. Mutual assent reveals a lot; what did the respondent do in relationship to this offer before and after the thumbs up.
    • Verbal contracts are just as legally binding as written contracts -it's just harder to prove they exist.

  • No.

    The emoji has a meaning though. If the client had simply responded "yes", it would be a confirmation, but not a signature. If you demand a signature, then specifically ask for it in your confirmation request.

    • No.

      Because you have no way of knowing how the emoji looks on the other side. Theming is still sometimes a thing.

      • Looked a bit into it... Changed my opinion.

        If sent in unicode (U+1F44D) or on a closed platform, then yes.
        Many platforms have "thumbs up" encoded as "+1", which is interpretable in various ways...

    • This is absurd. An emoji is not a signature, neither is an OK hand sign. Both are used casually, and sometimes excessively. A signature needs to be a deliberate and intentional act. Next we will be talking about farts of acceptance which will be a binding signature if smelt upon receipt of contract paperwork. The craziness needs to end.

      • by sg_oneill ( 159032 ) on Friday March 08, 2024 @07:23AM (#64299517)

        It doesnt matter if its not a signature. I think your misunderstanding what a contract actually is.

        A contract is not the piece of paper , or the signature. The conact is the agreement. The piece of paper is merely a record of the contract and to some extent a proof of it,.It could just as easily be a verbal agreement with some witnesses. Or an SMS message with an emoji in response, Theres side effects of this too. It actually helps prevent against stupid small-print nonsense. If one party gives another a 100 page document with some obscure latin in the middle and says "Dont need to read it, it just said we'll sell you this thing for $100 but in the middle of the contract it says "Also you have to give me your house" in incredibly obscure language , chances are a judge is going to throw that out because no reasonable person would have caught that and regardless its not what the guy who gave him the document said. Its not an accurate record of the agreement, so its not in the contract so to speak.

        But a thumbs up to :"can you deliver that flax if I give you this money?" yeah thats an agreement, even if its recording is perhaps a little informal.

        Note: I am not a lawyer, and different places have different contract laws so your mileage may vary.

        • That is also why a contract is by definition not transferable. I know Justice systems around the world disagree with me, but the parties that made the agreement are part of the contract. Some parties can have a contract that is small because they trust each other. Some parties need complex contracts spelling out all minute details and if/then clauses.
          • by SandorZoo ( 2318398 ) on Friday March 08, 2024 @08:30AM (#64299673)

            And historically, this is also one reason why businesses had to become "incorporated" into (non-natural) persons. It used to be contacts were made with the business owner, but then if the business got sold or the owner died, all contracts became invalid as they did not transfer to the new owner, and had to be remade. If the business is a fictional person, it can enter into contracts itself, on its own behalf.

          • Well no not so fast. Thats not how it always works

            An agreement is an asset, or a liability. It has a value to it If it didn't it wouldnt be enforcable, because it's worthless. And if its got a value, that means it can be transfered. Otherwise it wouldnt have a value.

            The catch being is they tend to be transferable in whole. If you have a debt to me for services, I might be able to sell that debt, but that also transfers the obligation to the service. Thats why debt collectors exist. They *buy* the contract

        • by chas.williams ( 6256556 ) on Friday March 08, 2024 @07:59AM (#64299609)
          At one point in history, and possibly still today, the illiterate would sign contracts and other documents with an X. With thousands of people using the same X signature, how would any contract be enforceable? Of course, the magic isn't in the ink or the shape of the X. The magic is in the record of the agreement.
        • Note: I am not a lawyer, and different places have different contract laws so your mileage may vary.

          Clearly neither is the defendant's lawyer, since they should know a signature is not strictly necessary for a contractual agreement to occur.

          • I dont actually think thats whats being disputed though. It seems to be a disagreement over whether the thumbs up meant "I agree with this" or "I acknowledge your post".

            I dont think however its going to be successful. Thumbs-up is not an analogue to "I disagree" in anyones language, and its a weird way to say "I'll get back to you on this". If he had followed up soon after with "Ok just heard back from the boys, we cant fulfill this request" then it'd be a case, but the only communications apparently was th

  • Someone should find out how often an emoji is actually used as a signature, when both sides are actually happy with it. If 1000 people ordered stuff by "signing" with an emoji and are happy, and one refuses to payâ¦
    • by dougmc ( 70836 )

      Apparently, a part of this case is that the two parties had regularly executed contracts between themselves that were signed in exactly the same way -- with an emoji.

      So never mind what other people do -- *these two people* regularly did contracts like this.

  • Obviously (Score:5, Insightful)

    by gweihir ( 88907 ) on Friday March 08, 2024 @05:36AM (#64299375)

    Anything that can be confirmed informally can be confirmed informally, obviously. Idiots thinking they can say/write/emote anything without consequences should not be given the time of day. And in this case, on a confirmation request, no less. Some people.

    Incidentally, people with honor and integrity do not try to weasel out of a contract they agreed to. That activity is reserved for people of really low quality.

    • by Anonymous Coward
      Anything that can be confirmed informally is not a contract and as such should not be seen in any way as a legally binding contract.
    • I can see at least one issue in this particular case. Some messaging platforms, like FB Messenger, will default the Send button to an emoji if no text has been typed into the outgoing message box. If it's someone you're in a relationship with (as determined by your FB status) it is a kiss. Otherwise it's typically a thumbs up. So what happens is when sending a message, if you inadvertently press send twice, the second time results in the emoji being sent.

      When you type a word "Okay" or some other confirmati

      • by gweihir ( 88907 )

        If that is the case here, this asshole should sue his messaging platform.

      • by tlhIngan ( 30335 )

        If you accidentally send something, you can either delete it, if the platform allows, or post a followup saying "Sorry, I made an error - I didn't mean to post that" ASAP.

        Especially if you do it within seconds of posting - last time I checked, most contracts take time to execute, so if you accidentally said the wrong thing, you can quickly back out. Of course, you don't do this months after sending a message, but generally speaking if you posted something accidentally, you can retract it when you realize yo

    • Not only that, my recollection of this case from the last time it came up was that these guys had an established history of exactly this interaction. Seller would say the price, buyer would thumbs up, and then they would actually complete the deal. Multiple previous times. To suddenly act as if his thumbs up didn’t mean acceptance when that’s clearly how it was used every previous time is disingenuous on the buyer’s part.

      • by gweihir ( 88907 )

        Wellm in that case the guy is just a complete asshole and should be laughed out of court.

  • Vagueness for a maybe contract, which is legally binding if and only if it turns out profitable. Probably accepted with similar reasoning.

  • I work for a government institution in an European country, we are deploying now digital signatures to all employees... do you say we can stop that and those people can instead use an emoji, as it would be binding and have full legal power? That would be awesome, we could get solve the problem much cheaper and with a lot less work.

    • Re:binding (Score:4, Insightful)

      by WarlockD ( 623872 ) on Friday March 08, 2024 @06:47AM (#64299453)
      Looks like one side took a picture of the signed contract and set it over to the guy and the guy gave a "thumbs up". Then the wholesale price of flux spiked by three times and suddenly there was no contract:P
    • by N1AK ( 864906 )
      You may have missed the fact we're talking about a news story where an emoji led to a court case because of disagreements about whether it was agreement... signing documents as a sign of acceptance is a relatively reliable way to avoid ambiguity. With that said I've spent millions across personal contracts and corporate contracts informally by email/text. Contract law, and case law, is well established and perfectly safe if you act appropriately; using emojis for this isn't something I'll be adopting anytim
  • by Junta ( 36770 ) on Friday March 08, 2024 @06:39AM (#64299439)

    At my workplace, for some reason people have taken to thumbs up to indicate not that they agree or like a message, but simply that they acknowledge the message was received.

    I find it utterly bizarre because there is a "read" indicator that these same people leave working, so it's redundant, except for the group chats I guess.

    Someone will announce something like "I can't make this meeting because my mom died" and the meeting organizer does a thumbs up. Or they said something about why they couldn't do something, get a thumbs up within a minute or so, then a while later the same person that gave the thumbs up gives an admonishment for not doing things right.

    • Many messaging apps will mark something as read because you have the chat window open, or if you click away from one chat to another.

      Sending an emoji is how you indicate that the message has actually been read by the intended human recipient.

      • Sending an emoji is how you indicate that the message has actually been read by the intended human recipient.

        Unless we use the example about the death above, in which case sending an emoji is how you indicate that you're inhuman.

        • by Junta ( 36770 )

          I recall some discussion about this in social media, where you were compelled to 'thumbs up' or 'like' anything if you wanted to express support for the person. So when they expressed some tragedy in their life, reflex would drive them to result in "Alice: My family was killed in a tragic car accident (Bob, Charles, and 6 others liked this)".

          So it can be an all too human thing to mindlessly throw out a reflex response that, when you step back, is really terrible.

          Milder examples:
          -You end a call with your bo

          • I've made etiquette errors at a funeral. I just don't go to enough of those to have it locked down to a reflex. Luckily it just broke the tension instead of insulting or horrifying people.

            My advice: do not leave the bereaved by saying "have a nice night". It is awkward at best.

            People will be people, and maybe we need an emoji that has no emotion to it, and simple indicates "acknowledged' instead of implying approval or appreciation.

    • Sounds like we need a 10-4 emoji or other quick function/indicator.

    • Someone will announce something like "I can't make this meeting because my mom died" and the meeting organizer does a thumbs up.

      That's not a read acknowledgement. That's an agreement that the person will not be at the meeting and that they won't be expected to join. Those are two very different things.

      Thumbs up is not just a read receipt, it's an acknowledgement that what was said has been taken in and processed in a meaningful way. You should absolutely be interpretating it differently from the little message read indicator.

      • by Junta ( 36770 )

        Well, sure there's more nuance, but I feel like the context warrants something else. If no 'emoji' seems fitting then typing the word 'Understood', if feeling extra empathetic a bit of offering condolences. Thumbs up has a connotation of general "happiness" with the subject material.

    • The indicator in your chat app, that the other one has received the message, does not mean he has read it.
      The indicator that he seems to have read it, does not mean he actually read it.

      So sending some confirmation that he actually ACKed your message, makes sense. But I would use the build in features of the chat app, and not a (Y) emoji.

  • If Docusign can be used to legally bind the parties to a contract, why not a thumbs up emoji response to a message containing a contract?
    • Docusign uses a digital signature that is non-reputable and accepted by the courts as a valid signature and trustworthy.

      An emoji can be added to a document after the fact and is not trustworthy.

      That being said, a signature does not need to be written out fully. Sometimes just a "mark" (ie an X) is sufficient if the person is illiterate.

      In this case, it apoears that the emoji was used in such a context as to imply acceptance of what was said in the email. Let's see how this plays out.

    • by Junta ( 36770 )

      Docusign makes you jump through some conspicious hoops. An emoji can be casual, it's just two taps away. There have been folks advocating and using 'thumbs up' as simply 'message received, but I don't necessarily have an opinion.

      It certainly seems weird to 'thumbs up' what is to be a pretty important business document and then fail to follow up with a 'no' or counter offer, if it were meant solely as 'message received'. I would be skeptical but it is still possible that they thumbs upped and forgot about

  • More emojis! (Score:4, Interesting)

    by linebackn ( 131821 ) on Friday March 08, 2024 @07:35AM (#64299551)

    Yea, so this is what modern communications have devolved in to. Communications by grunting via cell phone text messages. It is just too much to ask for people these days to elaborate on something or spell it out in enough detail to eliminate ambiguity or possible misunderstandings.

    Of course, you know how they will "fix" the problem... add yet another Unicode character/emoji/unintelligible hieroglyph specifically for accepting a contract!

    Because those pesky old letters A-Z are just too damn hard to combine in to ideas!

    • Yea, so this is what modern communications have devolved in to. Communications by grunting via cell phone text messages. It is just too much to ask for people these days to elaborate on something or spell it out in enough detail to eliminate ambiguity or possible misunderstandings.

      Of course, you know how they will "fix" the problem... add yet another Unicode character/emoji/unintelligible hieroglyph specifically for accepting a contract!

      Because those pesky old letters A-Z are just too damn hard to combine in to ideas!

      Much better in the past when the offer would have been made over a phone call, the response would have been "sounds good!", and there would have been no record of the transaction.

  • ...since everyone must know it...

    This feels like the guy used the emoji because fully intended to be ambiguous, or wanted deniability if he wanted to weasel out later. It was a calculated move.

    This is the court's job, to disambiguate, and he should have to pay a penalty for wasting tax payer dollars.

    • It was not entirely clear. South West Terminal should have sought confirmation of Chris Achter's intent or meaning. This would have avoided the whole brouhaha. I will occasional send an email saying something like "For the avoidance of doubt xxxx".

      However if SWT stood to gain by the sale (or the agent get a lot of commission) then they will see it as to their benefit to assume that it means "yes".

  • Maybe, if you were an artist and were formerly known as Prince.

    More to the point, shouldn't the "signature" be affixed to the contract - not a text message?

  • Potentially yes (Score:3, Informative)

    by dskoll ( 99328 ) on Friday March 08, 2024 @08:29AM (#64299671) Homepage

    If the text history was clear and it was obvious there was a meeting of the minds, then yes... a valid contract was agreed to.

  • One thing I have not seen mentioned, is that text message delivery time is not always consistent. Allowing an emoji over a text message to be used as an agreement to a contract could cause real issues if that emoji was intended to be sent in reply to another part of the conversation. There are times when I'm moving in and out of cell coverage and I don't receive some messages for several minutes, or occasionally in the wrong order.
  • Originally, "smiley faces", or "emoticons" where not used as words. They were intended to express feelings.

    They are there as a substitute for intonation in conjunction with words because it is otherwise difficult to express intonation in text form.

    So, the most a thumbs-up emoji can do to express entering into a contract, is to express that you are feeling positive about the contract and want to proceed.
    But it does not necessarily mean that you'd want to enter it right now.

  • If I was selling anything of any reasonable value, I'd want to make sure there was a clear and definite agreement precisely to prevent this sort of lawsuit from happening.

    I'd have responded with "I need more than a thumbs up. Can you send an email confirming that you agree to the terms", or at least asked for a text providing clear unambiguous confirmation.
  • If I want to decline, will the middle finger emoji work or do I have to use thumbs down?

  • Exchanging money wordlessly is also confirmation of a contract.

  • by reanjr ( 588767 )

    This reminds me of the confusion English speakers encountered in Japan over the word "hai" which generally translates as "yes" but is also often used to mean something like "ok, I understand".

    It would be as inappropriate to hold an emoji as executing a contract as it would to hold a Japanese businessman to a verbal contract after he says "hai".

  • I’m still opposed to “electronic” signatures in general. It’s harder to prove that a document “signed” on the Web by typing in your name or some other well-known text was actually signed by the person they claim to be than it is to prove a written signature is authentic. Even documents that are “signed” by entering a password are only good so long as that password hasn’t been compromised.

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