On June 8, 2023, the Court of King’s Bench of Saskatchewan released its decision of South West Terminal Ltd v Achter Land, 2023 SKKB 116 (“Achter”), in which the Court held that an individual sending a thumbs up emoji “👍” to someone else amounted to the acceptance of a contract.
In Achter, the Plaintiff, South West Terminal Ltd. (“SWT”), routinely purchased grain and crops from multiple farms, including Achter Land & Cattle Ltd. (the “ALCL”).
SWT and ALCL had a history such that SWT would call ALCL and ask for a specific amount and type of grain at a certain price. After the amount, the type, and the price were agreed upon, SWT would send a text message to ALCL with the drafted contract and state: “please confirm terms of durum contract”. The ALCL would respond to those text messages with, “looks good”, “ok”, or “yup”, and then ALCL would deliver the grain as contracted. Following this, SWT would pay ALCL the amount owed pursuant to the contract.
In March 2021, during a similar telephone call between SWT and ALCL, SWT agreed to purchase a certain amount of flax from ALCL for a certain price to be delivered in November 2021. SWT then sent the drafted contract through text message to ALCL with: “please confirm flax contract”.
Following this, ALCL responded with a thumbs up emoji “👍”. However, in November 2021 when it came time to have the flax delivered to SWT, ALCL never completed the contract. By then, the price of flax had increased substantially, and SWT was required to purchase flax from a third party at a much higher price. As a result, SWT initiated an action against ALCL for breach of contract and sought damages against ALCL.
Before the Court, ALCL gave evidence that the thumbs up emoji was only used to indicate that the contract was received from SWT, and not that the terms of the contract were accepted. Instead, ALCL’s evidence was that it was expecting a completed contract to be faxed or e-mailed following sending the text message. However, ALCL did not follow up with SWT regarding the contract.
Ultimately, the Court held that a contract had been reached and agreed to between SWT and ALCL that was binding on ALCL and, as a result of ALCL’s failure to provide the flax as agreed upon, ALCL was in breach of the contract. The Court reached this conclusion by reasoning that, to a reasonable bystander knowing all the background, the bystander would conclude that the parties had come to a “meeting of the minds” or a mutual agreement about the terms of the contract. Further, the Court held that, under The Electronic Information and Documents Act, 2000, SS 2000, c E-7.22, the emoji was a valid way to express acceptance of a contract.
While this case is not binding on courts outside of the province of Saskatchewan, it is persuasive and signals a modernization of how a contract is permitted to be accepted.
If you have questions about Achter and its impact on you or your business, please contact our office to discuss with our litigation group at Bishop & McKenzie LLP.