How ađź‘Ťemoji can equate to signing a legally enforceable contract: The Impact of Technological Advancements on Contractual Communications
2025 10-Under-10 Finalist
As technology advances, so has the way people communicate, including the way contracts are negotiated and formed. While there have been amendments to legislation and new legislation introduced to address the complications digital communications and electronic signatures bring, the court is just starting to be challenged with trying to determine the intention behind these new forms of communication and to what extent they can establish legally enforceable agreements.
In the past, informal contracts such as writing on a napkin have been found to be enforceable, but what happens when digital communications turn informal?
Achter Land & Cattle Ltd. v South West Terminal Ltd., 2024 SKCA 115 (Achter), contemplates just that. The Saskatchewan Court of Appeal recently upheld a lower court’s finding that a text exchange sealed with a texted “thumbs up” emoji could constitute an enforceable contract.
The initial judgement of Achter stems from a Summary Judgement application brought by the Plaintiff, South West Terminal Ltd. (South West)i. The position of South West was that they had purchased flax from Achter Land and Cattle Ltd. (ALC) on a deferred delivery contract that was breached when the goods were not delivered. South West had turned to the court to award damages on the lost bargain.
South West and ALC were routine business partners who had negotiated multiple agreements over the previous five years in a similar manner to the agreement in dispute. An offer for goods such as grain at a certain rate would be put out by ALC. South West’s representative would contact ALC on the phone to come to an agreement over the essential terms of the sale. South West would then draft a written contract for their representative to text a version or a picture of the version to the representative for ALC. Of note, the representatives for both South West and ALC had been the same for prior contract discussions as the one in Achter.
With cost of the flax being sold in the contract exceeding $50, The Sale of Goods Act, RSS 1978, c S-1 (SGA) would apply. Section 6 (1) of the SGA requires “some note or memorandum in writing of the contract is made and signed by the party to be charged or his agent in that behalf” for the contract to be enforceable. It was South West’s position that the thumbs up sent by ALC in response to the contract fulfilled the requirement of 6(1) of the SGA and the court agreed.
ALC had argued various positions as to why the application should not succeed with the main issues for the court to consider being whether a contract was formed, and whether the contract met the requirements of the SGA for it to be enforceable.
When looking at whether a contract was established through the meeting of the minds – the court looked to past dealing. In prior deals, ALC would respond to the sent contract via text with “ok” “yup” or “looks good”. The court found that the substitution of the thumbs up emoji served the same purpose as these other informal responses and that these communicates were equivalent to stating, I agree or accept – thus confirming the terms of agreement to establish a contract.
The more important discussion – that ultimately lead to the court of appeals dissent – was whether an emoji could fulfill the requirement of section 6 of the SGA to make the contract enforceable. The court looked at the Electronic Information and Documents Act, 2000, E- 7.22 (EIDA) and referenced the interpretation used in Quilichini v Wilson’s Greenhouse & Garden Centre Ltd. and Velocity Raceway Ltd. 2017 SKQB 10 that found that contractual terms can be agreed to by touching or clicking on an appropriately designated icon and can be equivalent to printing off the contract and signing a hard form.
Though recognized by the court as a non-traditional means to sign a contract, the court was prepared to say that a thumbs up emoji met the purpose of a signature as sending it via text made it identifiable by the unique identifiable cell phone number and could serve the purpose to acknowledge acceptance.
ALC did not like this interpretation and took the decision to the Court of Appeal. The Court of Appeal’s majority affirmed the lower courts decision stating ALC had failed to identify an error in law in the lower courts analysis nor did they take issue with their finding of fact by using of prior conduct to conclude the contract was formed and the intention of the emoji.
In the past, informal contracts such as writing on a napkin have been found to be enforceable, but what happens when digital communications turn informal?
Achter Land & Cattle Ltd. v South West Terminal Ltd., 2024 SKCA 115 (Achter), contemplates just that. The Saskatchewan Court of Appeal recently upheld a lower court’s finding that a text exchange sealed with a texted “thumbs up” emoji could constitute an enforceable contract.
The initial judgement of Achter stems from a Summary Judgement application brought by the Plaintiff, South West Terminal Ltd. (South West)i. The position of South West was that they had purchased flax from Achter Land and Cattle Ltd. (ALC) on a deferred delivery contract that was breached when the goods were not delivered. South West had turned to the court to award damages on the lost bargain.
South West and ALC were routine business partners who had negotiated multiple agreements over the previous five years in a similar manner to the agreement in dispute. An offer for goods such as grain at a certain rate would be put out by ALC. South West’s representative would contact ALC on the phone to come to an agreement over the essential terms of the sale. South West would then draft a written contract for their representative to text a version or a picture of the version to the representative for ALC. Of note, the representatives for both South West and ALC had been the same for prior contract discussions as the one in Achter.
With cost of the flax being sold in the contract exceeding $50, The Sale of Goods Act, RSS 1978, c S-1 (SGA) would apply. Section 6 (1) of the SGA requires “some note or memorandum in writing of the contract is made and signed by the party to be charged or his agent in that behalf” for the contract to be enforceable. It was South West’s position that the thumbs up sent by ALC in response to the contract fulfilled the requirement of 6(1) of the SGA and the court agreed.
ALC had argued various positions as to why the application should not succeed with the main issues for the court to consider being whether a contract was formed, and whether the contract met the requirements of the SGA for it to be enforceable.
When looking at whether a contract was established through the meeting of the minds – the court looked to past dealing. In prior deals, ALC would respond to the sent contract via text with “ok” “yup” or “looks good”. The court found that the substitution of the thumbs up emoji served the same purpose as these other informal responses and that these communicates were equivalent to stating, I agree or accept – thus confirming the terms of agreement to establish a contract.
The more important discussion – that ultimately lead to the court of appeals dissent – was whether an emoji could fulfill the requirement of section 6 of the SGA to make the contract enforceable. The court looked at the Electronic Information and Documents Act, 2000, E- 7.22 (EIDA) and referenced the interpretation used in Quilichini v Wilson’s Greenhouse & Garden Centre Ltd. and Velocity Raceway Ltd. 2017 SKQB 10 that found that contractual terms can be agreed to by touching or clicking on an appropriately designated icon and can be equivalent to printing off the contract and signing a hard form.
Though recognized by the court as a non-traditional means to sign a contract, the court was prepared to say that a thumbs up emoji met the purpose of a signature as sending it via text made it identifiable by the unique identifiable cell phone number and could serve the purpose to acknowledge acceptance.
ALC did not like this interpretation and took the decision to the Court of Appeal. The Court of Appeal’s majority affirmed the lower courts decision stating ALC had failed to identify an error in law in the lower courts analysis nor did they take issue with their finding of fact by using of prior conduct to conclude the contract was formed and the intention of the emoji.
Their analysis summarized in para 154, found that the thumbs sent via text on a personal cell phone, could be considered a note or memorandum of a contract or mark of agreement for the purpose that identifies and makes an intention to contract. The electronic data associated with the text could identify the maker of the mark and the symbol of a thumbs up the intention to contract. Therefore, the combination of the thumbs up and the meta data embedded in the message, served the same purpose as if the document had been printed off, singed and returned.
While the majority aligned with the lower court, Justice Barrington-Foote did not and provided a dissent. In his view, the lower courts decision was based on mixed finding of law and fact determining the decision was to be reviewed on the standard of correctness. It was his view that the original judge misinterpreted section 6 of the SGA and found that that conclusion led to a palpable and overriding error to allow the appeal to succeed. ii
Justice Barrington-Foote’s stricter approach to the SGA differed from the majority as he found their position that the insertion of a symbol with the meta data behind a text message stretched what is meant by section 6(1) and the need for a signature to be identifiable to affix. He viewed the insertion of a symbol removed the necessity of solemnity or attentiveness for a “signature” or a proper affirmation on the contract.
He further clarified that while an “x” or a symbol such as an emoji on the contract may represent a signature, a response to a contract does rise to the requirement of it needing to be inserted on the document or affixed with the intention for it to be binding.
So, what does this mean for contract interpretation?
A recent case out of British Columbia, Ross v Garvey 2025 BCSC 705 (Garvey), heavily relied upon Achter to determine if a contract regarding the sale of land, sealed with a thumbs up, was formed and enforceable. This was the first transaction between the parties so there was no prior conduct to provide context. As such, the court had to heavily rely upon the parties limited interaction. Similar as done in Achter, the court used their email exchanges and corresponding texts to find that a thumbs up response indicated an agreement to the essential terms for a contract to be formed. However, they used Justice Barrington-Foote’s analysis from Achter’s dissent and took a narrow approach to interpreting the requirements for singing a contract under the relevant legislation.
Since the contract was regarding the sale of land, it was fell under the Law and Equity Act, RSBC, c. 254 (LEA). Section 59(3) of the LEA required “a contract respecting land... is not enforceable unless (a) there is, in a writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter.” Applying similar reasoning as Justine Barrington-Foote, the judge found that to properly interpret the legislation, the act of sending a text or email did not contain the formality to reflect identity to be equivalent to having singed a contract. Additionally, it was an issue that the response was sent via text message and was disconnected from the contract itself as it was sent in a different form.iii
What can we learn from this? While courts are still finding different standards for what satisfy the applicable contract legislation, some will hold the enforceability to a higher standard and require more formality than others. Clients need to be aware that the informality of their communications does not prevent them from having the ramifications of being legally enforceable.While the majority aligned with the lower court, Justice Barrington-Foote did not and provided a dissent. In his view, the lower courts decision was based on mixed finding of law and fact determining the decision was to be reviewed on the standard of correctness. It was his view that the original judge misinterpreted section 6 of the SGA and found that that conclusion led to a palpable and overriding error to allow the appeal to succeed. ii
Justice Barrington-Foote’s stricter approach to the SGA differed from the majority as he found their position that the insertion of a symbol with the meta data behind a text message stretched what is meant by section 6(1) and the need for a signature to be identifiable to affix. He viewed the insertion of a symbol removed the necessity of solemnity or attentiveness for a “signature” or a proper affirmation on the contract.
He further clarified that while an “x” or a symbol such as an emoji on the contract may represent a signature, a response to a contract does rise to the requirement of it needing to be inserted on the document or affixed with the intention for it to be binding.
So, what does this mean for contract interpretation?
A recent case out of British Columbia, Ross v Garvey 2025 BCSC 705 (Garvey), heavily relied upon Achter to determine if a contract regarding the sale of land, sealed with a thumbs up, was formed and enforceable. This was the first transaction between the parties so there was no prior conduct to provide context. As such, the court had to heavily rely upon the parties limited interaction. Similar as done in Achter, the court used their email exchanges and corresponding texts to find that a thumbs up response indicated an agreement to the essential terms for a contract to be formed. However, they used Justice Barrington-Foote’s analysis from Achter’s dissent and took a narrow approach to interpreting the requirements for singing a contract under the relevant legislation.
Since the contract was regarding the sale of land, it was fell under the Law and Equity Act, RSBC, c. 254 (LEA). Section 59(3) of the LEA required “a contract respecting land... is not enforceable unless (a) there is, in a writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter.” Applying similar reasoning as Justine Barrington-Foote, the judge found that to properly interpret the legislation, the act of sending a text or email did not contain the formality to reflect identity to be equivalent to having singed a contract. Additionally, it was an issue that the response was sent via text message and was disconnected from the contract itself as it was sent in a different form.iii
Courts will continue to use the context of communications for assistance when trying to determine the parties’ intentions. As we see technology continues to advance, it is not obvious what position they will take. If a person responded via text using a personalized bitmoji affirming a contract, would that be clear and identifiable with an intention to affix? Would it make a difference if the person entering a contract is someone who frequently uses bitmojis in a causal fashion vs someone who had created one for that specific response?
With the dissent in Achter and the decision in Garvey, it is not clear the context or informal messages will carry much weight or will the courts continue to trend toward requiring a higher standard of consciousness and formality.
While these issues are still premature in the eyes of the court, the big take away is to inform clients and stress that what might seem like trivial communications could have significant repercussions. It serves as a good reminder that they should always make intentions clear and err on the side of formality when dealing with contractual discussions.
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i South West Terminal Ltd. v Achter Land & Cattle Ltd., 2023 SKKB 116.
ii Achter, at para 218.
iii Garvey at paras 118, 122-126.
The opinions expressed in this report are those of the author(s) and should not be taken as legal advice. Any errors, omissions or inaccuracies are the responsibility of the author(s). Content in Hearsay is edited for spelling, grammar and basic punctuation only.