A Canadian judge ruled in favor of a thumbs up emoji as “non-traditional,” though legally binding in signing a document.
Judge T. J. Keene sided in favor of the emoji in a June 8th ruling over a contract dispute between two Saskatchewan men.
In March 2021, marketing representative Kent Mickleborough reportedly sent local farmer Chris Achter a photo of a drafted contract in which the farmer would be required to sell 86 metric tonnes of flax to South West Terminal Ltd (SWT) at $17 per bushel. The farmer responded to the photo with a thumbs-up emoji, according to the lawsuit.
“This Court cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emoji and the like,” said Keene of his ruling.
Canadian judge rules thumbs-up emoji can represent contract agreement. pic.twitter.com/4SouksJ05u
— Nooruddin Pirani (@noorpirani) July 26, 2023
According to the lawsuit, Mickleborough signed the physical contract before taking a photo of the document and sent it to the farmer writing, “please confirm flax contract.”
Archer responded with a thumbs up emoji, though claimed his use of the emoji was in acknowledgement of Mickleborough’s message rather than agreement to the terms of the contract.
“I confirm that the thumbs-up emoji simply confirmed that I received the Flax contract,” reads a court deposition. “It was not a confirmation that I agreed with the terms of the Flax Contract. The full terms and conditions of the Flax Contract were not sent to me, and I understood that the complete contract would follow by fax or email for me to review and sign.”
Judge Keene cited previous text messages similar in nature from the farmer in his decision saying “each party’s conduct would appear to a reasonable person in the position of the other party.”
“The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound,” Keene said.
Archer and Mickleborough had previoulsy conducted business since 2015, though began conducting business over phone, email and text in response to the COVID-19 pandemic.
“We would typically have a conversation, either in person or over the telephone, agree on a price and volume of grain, then Chris would ask me to write up the contract and send it out to him. I have done approximately 15 to 20 contracts with Achter Ltd. during my time with SWT,” Mickleborough said, according to court documents. “After the commencement of the COVID-19 pandemic in approximately March of 2020, the sales team with SWT stopped going out and meeting with producers in person.”
