Don’t Use Emojis in Contract Negotiations? Canadian Court Rules Contract was Accepted with a 👍
In June 2023, a Canadian court ruled that a thumbs-up emoji amounted to a contractual agreement, ordering a flax farmer to pay more than $82,000 for not delivering the product to a buyer after the farmer responded to a text message with a thumbs-up emoji.
In the Canadian case, the buyer sent a text to the farmer saying they were looking to buy a specific quantity of flax at $17 per bushel. After speaking with the farmer on the phone, the buyer later texted a picture of a contract to the farmer for delivery of the flax with the words, “please confirm flax contract.” The farmer texted back a thumbs-up emoji. But, after one month, the flax was not delivered, and the market price of flax had increased to $41 per bushel.
The buyer sued for breach of contract and damages, arguing that on previous contracts, that same farmer texted back “yup,” “ok,” or “looks good” to signal agreement with delivery purchase contracts texted from the buyer, and that the farmer’s thumbs-up emoji demonstrated acceptance of the flax contract. The farmer, however, argued that the thumbs-up emoji merely meant that he had received the flax contract, not that he agreed to its terms.
The judge ruled in favor of the buyer — that a contract was formed because of the parties’ previous contracts and the common meaning of the thumbs-up emoji as denoting acceptance.
This thumbs-up case demonstrates an interesting snapshot of the use of emojis in commercial communications and the issues to consider as emojis work their way into the law of contracts. With this case in mind, we recommend:
- Do not negotiate contracts through texting.
- If you must text, memorialize it in another writing (email or letter) and do not use emojis as key terms. Emojis are inherently ambiguous and inconsistent across platforms as explained below.
Emojis are Inherently Ambiguous
The first issue with using emojis as communication is the inherent ambiguity when it comes to interpretation. In the above case, the judge noted that “even as a latecomer to the world of technology[,]” his understanding of a thumbs-up emoji conformed with the common understanding, that the use of the emoji signifies “assent, approval, or encouragement.” While the meaning of a thumbs-up emoji may be relatively straightforward in many contexts, there are thousands of emojis available, but no common, recognized glossary of emoji interpretations.
The judge in the Canadian case consulted dictonary.com to confirm his interpretation of the thumbs-up emoji. Although there are some online resources to assist with a general definition of what an emoji means, such as dictionary.com, Unicode, or Emojipedia, these resources are not uniform and they do not account for important considerations, such as context or the idiosyncratic use of an emoji by a certain user.
Emojis are Different Across Providers and Platforms
Emojis are not uniform across all platforms as shown by this example of a face with rolling eyes:
Since emojis can be subtle forms of communication to begin with, these nuances across platforms could influence their interpretation—a consideration a client should bear in mind before sending an emoji they think is “obvious.” Conversely, if an employee receives an ambiguous emoji, encourage them to confirm the sender’s intent in order to reduce or eliminate ambiguity.
As communication continues to evolve with technology, it is clear that emojis have not only worked their way into our personal lives, but into contracts and the courtroom. See e.g., Angelakos v. Institute for Building Technology & Safety, No. 18-CV-2365 (RRM)(PK), 2019 WL 13143746, at *7 (E.D.N.Y. Sept. 24, 2019) (noting that the informal language, including emojis, that counsel used in the negotiations of a settlement demonstrated counsel’s acceptance of an offer); Sewell v. Daniel, No. 1:19-CV-5790-TCB, 2020 WL 1800935, at *2 (N.D. Ga. Mar. 4, 2020) (holding that seller’s conduct created a dispute of fact as to his waiver of a buyer’s breach of contract where “[seller] inquired [via text] whether [buyer] was prepared to purchase; [buyer] responded affirmatively; [seller] replied with a thumbs’ up emoji; and [seller] then requested a purchase contract from [buyer] after the option had expired.”).
To avoid leaving the interpretation of a client’s emojis up to a judge, make sure to educate your team about the risks and issues associated with using emojis to communicate, and the effects emojis could have on the creation of contracts (whether intended or not).
For more information, please contact authors Tom Dunn or Sheya Rivard.