The story sounds crazy, but in the digital age, sending a thumbs-up emoji means accepting a contract, a court in Saskatchewan has ruled.
Chris Achter, a Saskatchewan farmer, was ordered last month to pay $82,200 restitution to a grain buyer for not delivering 87 tonnes of flaxseed to him, which had been previously agreed between the two men during of a text chat in 2021.
The particularity of this decision lies in the way in which the contract was accepted. Kent Mickleborough, the buyer, signed a contract on paper and sent a picture of it to Mr Achter, who replied with a thumbs up emoji [👍].
Chris Achter argues that this thumbs up expressed that he had received the contract and that he would come back to it later. “The complete contract would follow by fax or email for me to read and sign,” he thought.
“Please confirm Lin’s contract.” These are the words that accompanied the photo sent by Mickleborough. Faced with the thumbs-up response, he concluded that Achter “was in agreement with the contract”.
Judge TJ Keene leaned towards this second explanation, stipulating that the thumbs up made the contract valid.
The fact that the two men are longtime business partners was considered. Mr. Achter had already confirmed contracts by simply replying “looks good”, “ok” or “yup”, for example.
“The Court readily acknowledges that an emoji [de pouce] is a non-traditional way to ‘sign’ a document, but nonetheless, in these circumstances, it was a valid way of expressing the purposes of a ‘signature,'” Justice Keene wrote in his ruling.
And in Quebec?
“It’s an interesting decision, because in Canada, it’s the first time such a question has arisen,” says Vincent Gautrais, law professor at the University of Montreal and holder of the LR Wilson chair in e-commerce law. “But there have been plenty of cases in the United States, and generally the judge refused [le pouce]. »
Even if it is not a “great judgment” that will mark the history of law, Professor Gautrais already plans to have his students read it, since the judge “must adapt to the new circumstances imposed by modern technologies”.
“I genuinely believe there is a willingness on the part of whoever sent the thumbs up to accept the offer made to them. […] I think it’s a very logical decision. They are two professionals in the field, and they have been doing business together for ten years. »
Although the laws of Quebec are not identical to those of Saskatchewan, it could be plausible that a similar case knows the same conclusion here, believes Me Simon Chénard, business law lawyer and partner at Langlois Avocats.
“A contract is really the exchange of consent, so if the judge comes to determine that there was agreement on all the elements of the contract, it could be done [au Québec] “, he says in an interview.
Indeed, article 1385 of the Civil Code of Quebec dictates that “a contract is formed by the sole exchange of consent between persons capable of contracting unless the law requires, in addition, compliance with a particular form. as a necessary condition for its formation.
“It’s really the means of communication that is changing, in the same way as when we had a signed letter versus a signed email, analyzes Me Chenard. It’s the same level of certainty. Now it’s kind of the same thing, but with a text message. »
Vincent Gautrais also abounds in this direction. He explains that a contract needs two elements to be valid: that the identity of the two parties is clear, and that they both express their consent.
In the case of Saskatchewan, the telephone numbers attached to the conversation identify the person and it is the thumb emoji that expresses consent.
From a more global point of view, it is more and more common for evidence filed in court to be electronic, says Professor Gautrais. This is particularly the case of screenshots, or even audio and video recordings, and “the law has integrated this new reality”.
As for contracts, Mr.e Chenard still wants to say that precision should be required.
“It is better to be clear in your communications to ensure that you avoid ambiguities. The beneficiary of the contract [en Saskatchewan] still had to fight in court to get it right. »