Tuesday, August 1, 2023
We are back from our hiatus with a case for the ages!
Well, we knew someone was going to say it eventually; we just didn't have Saskatchewan on our bingo card. In Southwest Terminal Ltd. v. Achter Land & Cattle Ltd., the King's Bench for Saskatchewan ruled that a thumbs- up emoji constitutes acceptance as well as a writing that satisfies the statute of frauds.
In March, 2021, Southwest Terminal (Southwest) entered into a contract with Achter Land & Cattle (Achter) for the delivery of 87 metric tonnes of flax for about $670 per tonne. Achter did not deliver, and Southwest sued for $82,000 in damages. Achter claimed that there was no contract or, in the alternative, that any agreement was unenforceable because it was not memorialized in a signed writing.
The case is a nice lesson in relational contracts. The parties had been doing business together for years. They communicated sometimes by phone or text, sometimes in person, but after COVID, they increasingly communicated by text message. Contracts would be sent back and forth, and acceptance often took the form of curt text messages, such as “looks good”, “ok,” or “yup.” The exchanges at issue here were similar, except that they culminated in a thumbs-up emoji (👍), rather than a succinct affirmation in verbal form. Achter's agent contended that the emoji connoted only receipt of the contract, not agreement to its terms. In the deposition of Achter's agent, after confirming that iPhones are the best kind of phone, Southwest's counsel sought to confirm the meaning of "👍". While the emoji's meaning in the abstract can be open to several interpretations, in this case, it was deployed in response to the text "Please confirm flax contract." In context, the court was satisfied that the emoji connoted not merely receipt of the contract but acceptance of its terms.
There remained the issue of whether "👍" was sufficient to satisfy the statute of frauds. The court found that "the signature requirement was met by the 👍 emoji originating from [Achter's agent] and his unique cell phone." It is not so much that "👍" is a signature. Rather, as the court put it, "[U]nder these circumstances this was a valid way to convey the two purposes of a 'signature' – to identify the signator ([Achter's agent] using his unique cell phone number) and as I have found above – to convey Achter’s acceptance of the flax contract."
I recommend case this for teaching. The judge is careful and goes through the doctrinal steps to establish formation. You can edit it lightly and provide a nice review of formation as you cover the statute of frauds, and the students may be tickled by the signature by emoji element of the case. Or you can edit it more aggressively, and just use it as a contemporary illustration of the statute of frauds, which they apparently still have in Canada. C'mon Canadians, we expect more from you!