SWT v Achter 2023

Aug 1, 2023

Articles have been recently released about a decision in Saskatchewan surrounding contract law – with a fascinating modern twist. What does this decision mean and how will it affect the formation and approval of contracts in Canada?

The case in question is called South West Terminal Ltd. v Achter Land and specifically involves a contract for the sale of grain.

The producer was sued for breach of contract for not delivering the grain on time.

The truly interesting part of this case, however, is the use of an emoji.

The parties did business together for several years, and after the pandemic began to use a simpler system of creating and confirming contracts: they would speak on the phone to discuss details and then would draw up the contract, they would sign the contract, and take a picture to send for confirmation. A text back would confirm; usually something along the lines of “ok” or “sounds good”.

This was considered confirmation and signature of the contract. Previous contracts were all the same – the terms never changed, only the details.

In this case, particulars were discussed by phone and the usual protocol was followed. However, the response via text message was different this time; the response was a thumbs up emoji (👍). The receiver was under the impression this confirmed the contract. He expected delivery of the grain, but the grain never came.

Mr. Thumbs Up claims this was not an acceptance. He claims he was too busy to read the contract, it needed a specific clause. But the buyer thought it was safe to assume the emoji was the same response as before.

It is important to consider the context here. The two sides had a longstanding business relationship and a history of identical contracts. There was a routine each side would follow. We know previous text messages were acceptance because they were followed by performance. Mr. Thumbs Up never asked for a complete contract before, so he could sign in person, so why was this different?

While the seller complained this would open the floodgates for every emoji, the judge did not back down –if we as Canadians use emojis, this is the direction the world will move, and the legal system must adjust with the times.

So, what does this mean for people entering into contracts? Will you have to be mindful of the use of emojis?
Context is key. In this case, there were multiple examples of similar acceptance, and no reason to believe the emoji meant anything different.

Most people are not likely to run into this situation every day, but it is important to consider responses carefully. Reading contracts thoroughly before responding or signing is important, and this case demonstrates that even the sending of an emoji can have impact.


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