Court documents from the King’s Bench for Saskatchewan in March 2021 reveal that grain purchasers with South West Terminal, Ltd., sent a text message to grain suppliers wanting to buy flax for $17 per bushel for delivery in October, November, or December of the same year.
Following phone conversations with farmers Bob and Chris Achter, South West Terminal (SWT) prepared a contract specifying that Chris Achter would sell 86 metric tons of flax to SWT at a price of $17 per bushel, with the delivery of the flax scheduled for November.
According to the report, after the SWT representative signed the contract in ink, they took a photo of it using their cell phone and sent it to Chris Achter, along with the message “Please confirm flax contract.”
According to the documents, Achter responded with a "thumbs-up" emoji.
However, in November 2021, Achter failed to deliver the flax as agreed upon as stated in the documents. By that time, the price of flax was $41 per bushel.
According to court documents, the SWT representative stated that he had previously engaged in at least four other contract agreements with Achter through text messages. He said the only difference this time was Achter responded with a "thumbs-up" emoji instead of using phrases like "ok," "yup," or "looks good."
As mentioned in the documents, counsel representing Achter stated that... “the thumbs-up emoji simply confirmed that I received the Flax contract. It was not a confirmation that I agreed with the terms of the Flax Contract. The full terms and conditions of the Flax Contract were not sent to me, and I understood that the complete contract would follow by fax or email for me to review and sign. Mr. Mikleborough [sic] regularly texted me, and many of the messages were informal.”
Achter’s counsel said in the documents, “allowing a simple ‘thumbs-up’ emoji to signify identity and acceptance would open up the flood gates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean – for example, what does a punch emoji mean or a Handshake emoji mean, etc. Counsel argues the courts will be inundated with all kinds of cases if this court finds that ‘thumbs-up’ emoji can take the place of a signature.”
According to court documents, Achter emphasized that he would never agree to a contract for a product without including an Act of God clause. The documents also indicate that the judge concluded that it seemed “at least verbally struck."
He wrote, “I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a ‘thumbs-up’ emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions.”
The judge ruled Achter responsible for failing to deliver the flax and ordered him to pay SWT $82,000, in addition to interests and costs.
