Casual Legal: Agreement through emojis

By Anthony Purgas
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

When reviewing agreements on behalf of municipalities, lawyers will often include the phrase “in writing” after a reference to agreement. This change is to reflect the fact that, at law, a contract does not need to be in writing to be legally binding unless the parties agree that any changes or agreements must be in writing.

A recent case from Saskatchewan demonstrates just how careful parties must be to ensure they do not become tied to a contract they did not want.

In South West Terminal Ltd v Achter Land, 2023 SKKB 116, South West Terminal ordered flax seed to be delivered in November at $17.00 per bushel. By November, the price had increased to $41.00 per bushel. Achter refused to deliver the flax seed arguing that there was no contract.

When South West Terminal ordered the flax seed, they sent a signed form of contract for the order. Achter’s representative responded with a thumbs up emoji. Achter argued, among other things, that the “thumbs up” confirmed receipt of the contract and not agreement with the terms of it.

The Court noted that in previous orders Achter had accepted orders curtly: for example, “Yup”, “Ok”, and “Looks good” all had been used in the past for orders that were delivered under the terms in question. Based on this past practice, the use of the emoji denoted acceptance of the terms of the contract.

In addition, The Sale of Goods Act, RSS 1978, c S-1, in Saskatchewan has a provision that requires sales of a certain type to be in writing (Alberta’s Sale of Goods Act has a similar section). The Court held that, under the circumstances in question, the unique cell phone number identified the person providing the signature and the emoji used was sufficient for the writing component of the legislation.

As a result of the findings, the Court held that Achter was liable for damages of $82,200.21, which was the amount of the difference in the bushel price for the entire order.

This case further demonstrates the importance of setting clear expectations in contracts about how offers will be accepted or amended. In addition, it is important to train personnel to communicate with precision when dealing with potential contracts to avoid similar situations arising from informality.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.