People have been using emojis (?), and their predecessors, emoticons ( :-) ), for more than forty years to help express themselves in the digital world, where mere words can be misinterpreted. But a single emoji can have a variety of interpretations – just ask a few different people what “?” [crying face] means. You will probably receive answers ranging from sadness to hilarity (i.e. laughing so hard you are crying) and beyond. We nevertheless rely on emojis to communicate, not only in our personal lives but increasingly in our business lives. As a result, our courts are now tasked with sorting out the legal consequences of our choice of emojis – and unfortunately for judges, ?‍♀️ [I don't know] is not an option.

In South West Terminal Ltd. v Achter Land, a grain buyer texted a photo of a contract to a farmer with the request, “Please confirm flax contract”. The farmer replied with a single emoji: ? [thumbs up]. But the farmer did not deliver the flax, and the parties soon found they disagreed about whether they had a contract.

A lawsuit ensued. The grain buyer argued the thumbs up emoji meant the farmer had looked at the contract and agreed to its terms. The farmer argued the thumbs up emoji meant he had received the photo of the contract and would confirm it as requested. The Saskatchewan Court of King’s Bench had to decide: what does “?” [thumbs up] mean?

It seems impossible, and perhaps unwise, to assign one specific meaning to an emoji. How people interpret emojis varies depending on context like surrounding text, cultural and demographic factors, the platform being used, and current trends. There is also the issue of just how many emojis there are. With over 3,000 emojis to choose from, and new ones being released every year, one might ask, where do we stop? Would sending a ?[smiling face], ?[handshake], or ?[clinking glasses] emoji be sufficient to form a valid contract?

Fortunately, the Saskatchewan Court of King’s Bench did not have to contend with all these issues to decide whether the farmer had indeed agreed to sell flax to the grain buyer. As in more mundane contractual interpretation cases about how to interpret a particular word or phrase, the important question is not what that word or phrase means in all situations but what it means in the context of this specific case.

The judge’s job is more complicated than trying to figure out what the parties themselves thought at the time they agreed (or did not agree) to the contract, however. In contract law, the parties’ actual intentions and beliefs are irrelevant. Instead, the judge will put themselves in the shoes of a third party, often referred to as a ‘reasonable bystander’, who saw and heard what the parties did and said. The judge will then ask themselves whether they, as this reasonable bystander, would think the parties had agreed to the contract. As part of this analysis, the judge will consider not only what the parties did and said at the time they agreed (or did not agree) to the contract, but also factors like the parties’ past dealings.

As such, to decide what the thumbs up emoji meant in this case, Justice Keene of the Saskatchewan Court of King’s Bench considered how the farmer had communicated with the grain buyer in the past. Typically, the grain buyer would text a photo of the contract to the farmer and ask him to confirm the contract. The farmer would then text back, saying “looks good”, “ok”, or “yup”. The grain buyer and farmer would then proceed on the basis they had a contract. The farmer’s brief affirmative responses therefore meant agreement, not mere acknowledgement of receipt.

Justice Keene found that “?” [thumbs up] was equivalent to the farmer’s previous responses like “looks good”, “ok”, and “yup”, which all signified agreement. As such, the farmer had entered into a valid and binding contract with the grain buyer.

It is important to note that in Saskatchewan, a digital act like sending a text message can form a binding contract even if the contract is legally required to be in writing and signed. Under The Electronic Information and Documents Act, 2000 (Saskatchewan)[EIDA], a contract may be accepted by  “an action in electronic form”, like clicking an “I accept” checkbox. In this case, Justice Keene found that sending an emoji was an action no different than clicking an “I accept” checkbox. Justice Keene also ruled that the thumbs up emoji text message met EIDA’s definition of an electronic signature. As such, the contract fulfilled the requirement in The Sale of Goods Act (Saskatchewan) that a contract for the sale of goods worth more than $50 be in writing and signed.

In short, those doing business in Saskatchewan should be aware that even the briefest text message response could form a valid, enforceable contract – depending, of course, on the circumstances in which it was sent. Take care in your communications; consult a ⚖️ [lawyer] and 🤔 [think] before you 🤝 [shake on it].

This discussion was written by Caroline J. Smith and Kira J. Dmytryshyn. Caroline is a partner in the Saskatoon office and practices primarily in the area of commercial litigation, including contract, construction, real estate, and shareholder disputes. Kira is a 2023 Summer Student in the McKercher LLP Saskatoon office.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s largest, most established law firms, with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have helped our firm to rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2021/22). Integrity, experience, and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.