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June 30, 2023 6:19 AM

Offer, Emoji, Consideration A Saskatchewan court has ruled that (in certain circumstances) an emoji can constitute a digital signature accepting the terms of contract.
posted by jacquilynne (24 comments total)

"Achter said the thumbs-up emoji simply confirmed he had received the Flax contract. “It was not a confirmation that I agreed with the terms of the flax contract."

I would have argued this, too. The guy was asked to please review the (rough) contract, so does the thumbs-up emoji mean "Yes, I will review", or "Yes, I accept"? But given the past conduct of the parties, this decision was the right call.

Interesting little case that goes back to basic principles.
posted by Capt. Renault at 6:37 AM on June 30, 2023 [2 favorites]

IAAL. IANYL. I wrote an article for the New York Law Journal about this exact issue when it came up in NY, but Eric Goldman did too and it's usually better to read his. Anyway, yeah, parties' intent is what matters in contract analysis and emojis can indicate that. Or not.
posted by The Bellman at 7:04 AM on June 30, 2023 [3 favorites]

👍



Now, what do I mean here?

Am I saying; "Cool article, thanks for sharing". Or "I agree with the Saskatchewan Court", or "My thumb hurts, will someone please kiss it better?"
posted by dogbusonline at 7:15 AM on June 30, 2023 [1 favorite]

A student once asked Malaclypse the Younger: Master, what is the true meaning of Discordianism?

He said: A Zen student once asked his master, what is the true meaning of Buddhism. The master replied, Three pounds of flax.

The student asked: So is that the answer to my question?

Malaclypse scoffed: Of course not! That was just illustrative.

The answer to your question is FIVE TONS OF FLAX! 👍

posted by zamboni at 7:23 AM on June 30, 2023 [2 favorites]

parties' intent is what matters in contract analysis and emojis can indicate that. Or not.

One can also imagine a meme doing it. Maybe jason-momoa-with-folding-chair.
posted by praemunire at 7:45 AM on June 30, 2023 [2 favorites]

👍

Now, what do I mean here?

Am I saying; "Cool article, thanks for sharing". Or "I agree with the Saskatchewan Court", or "My thumb hurts, will someone please kiss it better?"

Or maybe you need a ride somewhere.
posted by TedW at 7:49 AM on June 30, 2023 [2 favorites]

But was it an iPhone or Slack thumbs-up of the kind that is attached to the previous message bubble, or a entirely separate thumbs-up message?
posted by cnidaria at 8:12 AM on June 30, 2023

Huh, I didn't realize you could italicize an emoji until that comment I just made.
posted by TedW at 8:13 AM on June 30, 2023 [8 favorites]

(Squinting)

Does your thumb up look different when italicized?!??
posted by clew at 8:14 AM on June 30, 2023 [1 favorite]

Does your thumb up look different when italicized?!??

It does on my machine (Windows 10).
posted by clawsoon at 8:15 AM on June 30, 2023 [2 favorites]

I'm assuming this decision would not get a thumbs up in the Middle East.
posted by tafetta, darling! at 8:26 AM on June 30, 2023 [1 favorite]

Does your thumb up look different when italicized?!??

It does on my Windows desktop but not on my iPad. I am not sure how to feel about that.
posted by TedW at 8:46 AM on June 30, 2023

Just to add a data point on the italic thumb debate: it appears canted in Firefox on a Mac.
posted by SPrintF at 9:40 AM on June 30, 2023 [3 favorites]

This is why I always use eyes emoji 👀 to say "yes I have seen this message and I am looking at/looking into whatever you want me to look into". No confusion that way as to whether I've agreed to anything!
posted by matcha action at 9:43 AM on June 30, 2023 [1 favorite]

Just to beat this to death: from my programming days I recall that some text rendering engines, when confronted with "italics", look for an italic typeface in the same font family. Ie, if the main text is Helvitica and the renderer requires italics, it searches for a Helvitica Italic typeface and pulls the appropriate font size. If there's no explicit italic rendering in the font family, the renderer tries its best to "slant" the characters by adjusting the characters' vectors to "lean right". The former method produces the best results, while the latter is just a punt.
posted by SPrintF at 10:31 AM on June 30, 2023 [1 favorite]

If I click the thumbs-up like button on Facebook, am I legally bound to cook that apple turnover recipe my aunt posted?
posted by clawsoon at 10:32 AM on June 30, 2023 [2 favorites]

As an Old, I am always worried I’m going to use an emoji in a way that means something totally different to a native speaker. “What? No! I just meant that I need to pick up an eggplant and some peaches at the grocery store!”
posted by Horace Rumpole at 10:43 AM on June 30, 2023 [2 favorites]

This case reminds me of when I was about 15, playing in a Magic: the Gathering tournament, and my opponent suddenly started taking their turn while I was still (I thought) in mine. When I raised a confused objection, they said I had yielded my turn by saying "OK", and the judge sided with them. I'm still mad about it. Polysemy, motherfucker, do you speak it?
posted by aws17576 at 11:49 AM on June 30, 2023 [3 favorites]

(As an Old, I love chances to use emoji or slang in increasingly raunchy ways with ever thinner deniability, while looking prim and perplexed.)
posted by clew at 2:52 PM on June 30, 2023 [2 favorites]

(As an Old, I love chances to use emoji or slang in increasingly raunchy ways with ever thinner deniability, while looking prim and perplexed.)

Are you the legendary parent who kept responding "lol" to every death you heard about, claiming you thought it meant "lots of love"?
posted by clawsoon at 4:04 PM on June 30, 2023 [2 favorites]

Are you the legendary parent who kept responding "lol" to every death you heard about, claiming you thought it meant "lots of love"?

Why the frown?
posted by TedW at 7:30 PM on June 30, 2023 [1 favorite]

Maybe jason-momoa-with-folding-chair

this is co-party's counsel attending a deposition
posted by snuffleupagus at 9:45 PM on June 30, 2023 [1 favorite]

Here's the key part of the agreed statement of facts:

4. SWT has purchased grain from Achter through various deferred grain contracts since approximately 2012.

5. On March 26, 2021 at 1:01PM, Mr. Mickleborough texted the following text message to producers including Bob Achter and Chris Achter:

All Divisions - - Kent Mickleborough – Flax Prices : Flax 1Can(max 6% dockage) $22.50/bu Apr. $17.00 Oct/Nov/Dec del

6. Following Mr. Mickleborough sending this text message, he received a call from Bob Achter. After speaking with Bob Achter, Mr. Mickleborough called Chris Achter. Following the phone call with Chris Achter, Mr. Mickleborough had a contract drafted for Achter to sell SWT 86 metric tonnes of flax to SWT at a price of $17.00 per bushel (which amounts to $669.26 per tonne) with a delivery period listed as “Nov”. Mr. Mickleborough applied his ink signature to the contract, then took a photo of the contract using his cell phone. Mr. Mickleborough then texted the photo of the contract to Chris Achter at 306-264-7664, along with the text message: “Please confirm flax contract”. Chris Achter texted back from 306-264-7664 a “thumbs-up” emoji.

And the law:

[18] The parties disagree as to whether there was a meeting of minds which is the basis of a contractual obligation. A contract is only formed where there is an offer by one party that is accepted by the other with the intention of creating a legal relationship and supported by consideration (Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22 at para 35, 459 DLR (4th) 425 [Aga]). Whether this has happened is to be viewed in accordance with an objective theory of contract formation. The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37). The courts when considering this question are not restricted to the four corners of the purported agreement, but can consider the surrounding circumstances (Aga at para 37). The nature and relationship of the parties and the interests at stake help inform the question of an intention to create a legal contractual relationship (Aga at para 38).

[19] Chris who is the acting mind of the defendant Achter had a long standing business relationship with SWT going back to at least 2015 when Kent Mickleborough [Kent] started with SWT as a grain buyer (Kent Mickleborough affidavit sworn September 14, 2022 at para. 2).

And turns out the parties had completed four contracts executed by text message confirmation. (affidavit excerpt)

So it comes down to much more than whether in the abstract this would form a contract. But don't be doing contracts like this!
posted by lookoutbelow at 10:30 AM on July 1, 2023 [2 favorites]

Polysemy, motherfucker, do you speak it?

Thank you for this excellent word, aws17576.

The article was a really interesting read. Given that the two parties had a history of working together with casual agreements like this, the ruling seems like a good one, but I can tell I’m going to be extra-careful to say exactly what I mean in tedious detail for awhile.
posted by Well I never at 11:13 AM on July 1, 2023