A Thumbs-Up to Liability: The $62K Contract By Text

A Thumbs-Up to Liability: The $62K Contract By Text

Who hasn’t sent a typo when texting?

I plead guilty. Texting is quick, but sometimes (perhaps often) I don’t see my mistake until just after I have sent it. And it’s not just me – errors are so common that many people include comical explanations in their signature blocks. https://www.linkedin.com/pulse/excuse-my-typo-signature-lines-collection-pravash-pujari/

But joking aside, not only do grammarians criticize sloppy texting

(https://contentbureau.com/resources/copywriting-tips/excuse-your-typos-no-i-wont-actually), but business websites also point out the “IRL” risks from using texts for important messages.  https://www.inman.com/next/sent-from-my-iphone-please-excuse-any-typos-and-5-other-text-bombs-youre-making/

But aren’t text typos just an inevitable – and harmless – risk of modern life, like a misaddressed email was, all the way back in 2005?

A recent Canadian court did not see it that way – and held an emoji sender liable for a $62K contract, based on his “thumbs up” emoji. https://www.businessinsider.com/judge-ruled-thumbs-up-emoji-can-represent-legally-binding-agreement-2023-7


(Although the case was decided under Canadian law, the contract formation principles should be familiar to any first-year contracts law student in this country.)

A “thumbs up” emoji (https://emojiguide.com/people-body/thumbs-up/) was a commodities buyer’s response to a request from a business colleague to “please confirm flax contract”. In court, the buyer claimed that he only wanted to confirm receipt of the contract, rather than acceptance. But the seller – and the court – treated it as a binding acceptance of an offer to sell, a familiar contracts law analysis.

To me, the crucial fact for the court was not just the use of an emoji text to form the contract, but also the parties’ “pattern” of conduct, in other commodities deals, over a period of time. The court explicitly equated the emoji to the parties’ prior verbal exchanges such as “ok”, “yup” or “looks good” – which neither party disputed had actually created contracts. As the court described it, these were  “uncontradicted proof of the manner in which the parties conducted their business”.

In a world where seemingly everyone texts, at all times and for all purposes, “this Court cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like”.

As a result, that quick thumbs-up emoji response cost the sender $61,498.09, plus interest and costs.

As a business attorney, I know from long experience that a sad tale such as this will not stop clients from doing business in the way they prefer – and I can’t deny seeing “ok”, “yup” and “looks good” in our clients’ messages. But I can let them know the potential cost of such business shortcuts. I just hope that I can convince them that what works well for setting a tee time should not be the way to make expensive contracts – especially when a simple, “old fashioned” phone call, or even a Stone Age email, can eliminate any uncertainty, and risk.

For further information, please contact Stanley Jaskiewicz, Esquire, of our Business Law department at sjaskiewicz@sgrvlaw.com, or 215-241-8866.


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