I've worked in agriculture all my life and a case like this doesn't surprise me in the least, nor does the inevitable responses in social media that infantalize farmers as dumb hicks who have to be protected from themselves. If you're responding to a buyer offering an $57,000 contract with an emoji you're not acting very professionally. This is nothing more than seller's remorse. You'd better believe that this farmer would be threatening lawsuits if the price for flax had fallen in the meantime and the buyer was the one arguing about the thumbs-up signal.
Regardless, this shouldn't have been an issue at all if the farmer had adequately hedged his position with an offsetting buy option at the sale price that would have captured any significant price movement (outside of any basis shift).
This farmer was playing loose with risk management and wanted someone to eat his $25,000 mistake (higher $82K later crop value minus original approx $57K contract value at $17/bu for 86 tonnes).
EDIT: now that I think more about it, I'd guess this farmer completely forgot about the sale agreement and this argument about the emoji was a post-hoc invention by his lawyer to try and weasel out of paying the terminal $82,000.
> If you're responding to a buyer offering an $57,000 contract with an emoji you're not acting very professionally.
Maybe not, but if I sent a text saying ‘I’ve sent you the contract’ and got a thumbs up or the iOS Tapback thumbs up, 100% I’d assume they were acknowledging my message, not signing the contract.
Would a voice replying saying ‘yes’ or ‘yeah’ constitute a signed contract too?
If this is the first time you've interacted with a buyer/seller, absolutely you'd need clarification. But if they've been dealing together for years and the farmer has previously responded--and delivered--on a text message contract, it's a different story.
I standby my assertion that the farmer simply forgot about this exchange and was shocked to get a bill for the replacement value of the contract when he didn't show up with it. This amount of flax is likely grown on about a quarter section in Saskatchewan, or 160 acres. The average grain farm size is almost 1,800 acres, so this size would be less than 10% of the total harvested area, and many farms are double and triple that size. Easy to forget about six months after the text exchange.
Agreement via text in text message and agreement via emoji in text message are two different things. I wish the article would have been more specific about the past texts, if they were also thumbs up, then the farmer clearly agreed, but if the past affirmative agreements were written in text, then I don't think the ruling was reasonable.
The emoji is certainly problematic, but it wasn't the sole piece of evidence regarding the contract.
"The buyer, Kent Mickleborough, later spoke with Swift Current farmer Chris Achter on the phone and texted a picture of a contract to deliver the flax in November, adding 'please confirm flax contract.'"
If I've talked to you on the phone about the contract and then send the image with a request to confirm the flax contract, it's harder to argue that a thumbs-up only reflects receipt of the message instead of a confirmation, especially if no further response is sent by the recipient.
I don’t think it’s hard to argue that. We have multiple people in this thread, including myself, who understand that a thumbs up often denotes acknowledgment rather than acceptance, an “OK” rather than a “yes”. If I discuss an agreement with you and then send it over, and you send me a thumbs up, I’m still going to interpret it that way and follow up later for a clear confirmation.
I can see how the buyer might interpret it as acceptance, but it’s such a vague response that it was irresponsible not to follow up, and I can’t help but disagree with the decision in this case.
If I spoke with you on the phone about the contract and sent you the contract later on WhatsApp with a message please confirm the contract. And you answered with thumbs up. I would assume that you are confirming the contract and not that you received it.
That’s fine. We would both interpret it differently. A lot of reasonable people would. That’s my point. It’s not that a thumbs up can’t mean approval, but that it just as well can mean acknowledgment.
It's unfortunate that pretty much all decisions become precedent (given that Canada/Saskatchewan has Common Law). In a case like this where the farmer responded with the thumbs up emoji, claims it was only to signal "ACK'd and will respond later", but didn't respond with "yes" or "no" afterwards, I suppose it's fine to assume that the thumbs up was a sign of legal/contractual assent and he's trying to retcon what actually happened.
But do you want it to be codified as precedent that signing with a thumbs up is a valid legal signature? Also, the meanings of emoji change (see the sexual connotations that many emoji have picked up since their release - those connotations weren't present on day zero), so how do you protect against that?
Not a Canadian lawyer, so I stand to be corrected by someone who is. But in common law jurisdictions generally, there is no such thing as a "valid" or "invalid" signature for simple contracts. Certain types of contract like deeds etc do have formalities that need to be observed for them to be validly executed. But in general, a basic contract requires (a) an offer, (b) an acceptance, (c) consideration and (d) an intention to create legal relations. Whether these things are present is a question of fact, not of law. In theory you can communicate your acceptance of an offer by a text message that just says "k", or a handshake, or a nod, or a grunt. There is no reason why you couldn't do so by sending a thumbs up emoji.
Of course, doing business this way introduces evidentiary difficulties that may make your (or your counterparty's) life hard later on. A lawyer would certainly never recommend you document a contract this way. But a court will nevertheless look at the evidence before it and do its best to determine whether the elements of a contract referred to above are present.
Precisely. The use of the emoji was tangential to the evidence that contracts between these two parties had previously been negotiated via text messages.
> "The Court of King's Bench decision said a grain buyer with South West Terminal sent a text to farmers in March 2021 saying that the company was looking to buy 86 tonnes of flax for $17 per bushel to be delivered in the fall."
> "The buyer, Kent Mickleborough, later spoke with Swift Current farmer Chris Achter on the phone and texted a picture of a contract to deliver the flax in November, adding 'please confirm flax contract.'"
It's not like the court determined a thumbs-up emoji is now equivalent to a witnessed signature or anything.
> Also, the meanings of emoji change (see the sexual connotations that many emoji have picked up since their release - those connotations weren't present on day zero), so how do you protect against that?
I'm not too worried about it. I think that even if in the future the thumbs up emoji unambiguously meant "I like butts" or something a judge would do exactly the same thing they did in this case and apply common sense. A thumbs up today signals agreement, so it meant the contract was agreed to. In the future, if someone goes to court because they didn't mean to sign the contract they could make the case "I was professing my love of butts!" and a judge would say "Yep, that's what the thumbs up emoji means to most people! The contract is unsigned"
The precedent here is that intent matters more than a signature, not that the thumbs up sign is always going to be how contracts are signed.
"those connotations weren't present on day zero), so how do you protect against that"
The same way that you deal with any words - you evaluate them in context. A thumbs-up emoji can be reasonably interpreted in this case as a confirmation of the contract.
I am confused why anyone would even consider this news. If there is considerarion to the farmer then what is so special about the emoji? Any reasonable person considers it an affirmative response.
Think of it this way, if this was some EULA and instead of "i agree" there was a thumbs up emoji, would it not still be valid?
> Any reasonable person considers it an affirmative response.
Affirmative response to what - have received the message or have agreed to the content of the message? That is the issue. I can easily see farmer's side of the story.
EULA by nature of its delivery does not have these state - have landed on the webpage page, and agree to the content of the page.
There was a call to action, not a question: 'please confirm flax contract'. The thumbs up could easily be interpreted as 'understood, will confirm', and personally that'd be my interpretation, given the situation. It seems especially likely if there wasn't much of a delay before the response was sent (sufficient time to adequately review the contract).
I love all of the people in the comments arguing about the minutiae of whether a thumbs up constitutes signing a contract.
Aren't all of you usually banging on about the dystopian corporate hellhole the world is becoming?
Why in the fuck would a thumbs up ever constitute formally signing a contractual agreement. Even the idea of verbal agreement is a disgusting concept ripe for abuse by assholes.
People thumbs up a message to go to dinner with friends, knowing full well they can cancel any time they want. People do not thumbs up a contract/payment worth big money expecting that they're signing off on it.
Your example is literally reviewed in the article:
"If you were to say to me, 'Let's go out for dinner tonight, and I'll meet you at this restaurant at this time,' and I send you a thumbs[-up] emoji, what does that mean?" Lee said.
"It means I'm going to meet you at the restaurant at that time."
Hell, you even sound like you agree with this take:
> People thumbs up a message to go to dinner with friends, knowing full well they can cancel
You can't cancel on plans you haven't agreed to. If you reply with a thumbs-up to go to dinner (per your example!), then the assumption is that you're going to dinner (and thus have the option to cancel).
Difference is, in this case, the agreement was to a contract, not dinner. The latter is typically much easier to back out of.
I can bloody well cancel on whatever I like unless it's a formal agreement. The realm of emojis and text chats do not have any business being in business. A contract is a contract, not an emoji.
What are the terms of the emoji? Both parties agreed to some set of conditions maybe, but the emoji's on the final message? Did one party agree to all the conditions, or just some of them?
There is no way in hell in my mind, that an emoji has any bearing on business dealings. This is just more bullshit corporate lawyer stuff. If their CEO thumbs up a "200% raise for all our employees laughing emoji" along with everyone else, it doesn't _mean_ that the CEO has approved of it, it's mean they've _seen_ it.
The judge notes the two parties had demonstrated a long history of executing contracts and doing business together in this manner, which he used as a basis to find "consensus ad idem" (a meeting of the minds).
This is novel and the lack of traditional formality may seem a bit scary. But compared to all the sleazy browsewrap and clickwrap Terms of Use pages out there on websites which have some degree of jurisprudence to support them, it's downright incandescent in clarity (especially the ones that bury their copy-pasted terms on an ancillary page).
Now that there's legal precedent for this, I can't wait to sign my cellphone and internet contracts with emojis when they're up for renewal to see if they'll accept them - somehow I doubt it.
Pictures are ambiguous. A response like "I will deliver X amount of flax to you at Y price" and not delivering months later would be grounds for a lawsuit, but a picture of a thumbs up? Nah.
Maybe I'm getting old, but it seems so foolish to apply legal power to a picture of a thumbs up when an eggplant colloquially means "penis" and a leaf means "weed".
Ignore the emoji for second. The lawsuit would not be any different (save for a less funny headline) if the farmer had responded "okay" or "affirmative" or "alright". The farmer's arguing he responded to the request to read the contract, the flax seller is arguing they were responding to the contract itself. Nobody involved is asserting that that the emoji itself was ambiguous, merely what it was in response to.
"Maybe I'm getting old, but it seems so foolish to apply legal power to a picture of a thumbs up when an eggplant colloquially means "penis" and a leaf means "weed".
So we can agree that some emoji hold well-understood meanings. In the same way that some letters strung together can hold meanings. Any reasonable person would understand the meaning of a thumbs-up emoji in response to "please confirm flax contract" (and no other response).
The precedent, if anything, is acknowledging that people can, and do, communicate with emojis.
If the farmer had typed, "got it", that could either be an acknowledgement of receipt or an expression of understanding, and the thumbs-up is used the same way.
Contract agreements need to be explicit. Allowing someone to use "gotchas" to lock people into contractual obligations is abusive af.
They actually don't. Courts have to grapple with poorly documented agreements all the time. They do so by hearing arguments from both sides and looking at context for clues as to the parties' intentions.
You can argue that a society where all contracts have to be spelled out in writing would be a better society, but it's not the society we live in and never has been. Making up a rule like this now would be hugely disruptive as it would mean that many agreements that were enforceable yesterday are unenforceable today.
Using "gotchas" to wriggle out of contractual obligations because the market has turned against you is similarly abusive.
You are talking about ambiguous wording in contact language, which is very different than it being ambiguous whether someone was entering into a contract or not. The latter is not a thing; both parties have to reasonably understand they are entering into a contract for it to be valid.
It can be implicit acceptance (such as paying a cash for something without first signing anything), but the action that constitutes entering the contract must be clearly-defined.
> You are talking about ambiguous wording in contact language, which is very different than it being ambiguous whether someone was entering into a contract or not. The latter is not a thing
Of course it's a thing? There are loads of cases that turn on the question of whether a contract has been formed (and specifically whether an offer has been accepted).
> both parties have to reasonably understand they are entering into a contract for it to be valid.
To be honest, my initial impression was that the only reasonable interpretation of a thumbs up emoji sent in response to a text asking to confirm contract terms is that it is an acceptance of the terms. I see that you and others disagree, which is fair enough - maybe there is room for a different interpretation. Then it falls on the court to decide what the intentions of the parties actually were, on the balance of probabilities. Here, the court (having access to more background information than either of us) has concluded that the parties probably intended there to be a contract.
> It can be implicit acceptance (such as paying a cash for something without first signing anything), but the action that constitutes entering the contract must be clearly-defined.
The action in this case is very well-defined - it is the sending of a thumbs up emoji. The question is what was intended by it. There is nothing uniquely ambiguous about emojis - law libraries are full of cases where the court has to interpret ambiguous actions, or written or spoken words. There is not, and never has been, a rule that communication in a medium that is capable of ambiguity cannot be the basis of a valid contract.
> The action in this case is very well-defined - it is the sending of a thumbs up emoji. The question is what was intended by it.
Which makes it not clearly-defined as intending to enter a contract.
The action of sending an emoji, unlike handing someone cash or signing a contract, is not an action that inherently implies entering into an agreement for exchange of goods and services.
If you're being honest, you and I both know that that is not how emojis are used. So to carve this out and go, "oh yeah, that is enough to constitute an implicit acceptance of contract terms" is insane.
If I post "You will send me $50." on Twitter and someone likes it (which also involves responding with a thumbs-up emoji), are they then obligated to send me money?
The law is not computer code. Ambiguous situations exist. Intent matters. We have judges to (usually) sort it all out in a reasonable manner.
Trying to get off the hook of a contract on such a frivolous technicality was bound to end poorly for the plaintiff. I can see right through their intent, and surely a judge can, too. It’s a grift, and probably a premeditated one at that.
Regardless, this shouldn't have been an issue at all if the farmer had adequately hedged his position with an offsetting buy option at the sale price that would have captured any significant price movement (outside of any basis shift).
This farmer was playing loose with risk management and wanted someone to eat his $25,000 mistake (higher $82K later crop value minus original approx $57K contract value at $17/bu for 86 tonnes).
EDIT: now that I think more about it, I'd guess this farmer completely forgot about the sale agreement and this argument about the emoji was a post-hoc invention by his lawyer to try and weasel out of paying the terminal $82,000.