Giving the Thumbs-Up: Could this be a new Powerful Symbol of Acceptance in International Contract Law

By Beverley Agbakoba-Onyejianya & Emmanuel Agherario

In a recent case, South West Terminal Ltd. v Achter Land^[1], in Saskatchewan, Canada, the Court of King’s Bench ruled that the use of a thumbs-up emoji in a text message not only constituted acceptance of an offer but also satisfied the writing requirement under Saskatchewan’s Sale of Goods Act.^[2] This groundbreaking decision has significant implications for the international legal and business community, including Nigeria, and highlights the growing recognition of emojis as a valid form of communication in contract law. One could opine that it was only a matter of time before, the wide acceptance and natural communication of the younger generation through emojis found its way into contracts.

Taking a closer look at the case, the defendant, Achter, was the offeree in an alleged contract for the sale of flax. He argued that his use of the thumbs-up emoji in a text message was merely confirming receipt of the draft contract, not acceptance of its terms. However, the court disagreed and held that the emoji did indeed constitute acceptance.^[3]

Contracting History and Context:

The court’s decision was heavily influenced by the mode of contracting history established between the parties. They had previously engaged in approximately twenty contracts for flax, using direct messages as a means of communication. Achter confirmed previous offers with simple messages like “yup,” “looks good,” or “ok,” and proceeded to deliver the flax accordingly. In this case, he responded with a thumbs-up emoji. Taking the history into context, the court concluded that a reasonable person would understand the emoji as acceptance of the contract terms offered.

Recognition of Emojis as a modern form of Communication:

While the court did consider a definition of the thumbs-up emoji found on dictionary.com, the primary grounds for its decision were the established practice and communication history between the parties. The court also explicitly recognised that emojis can constitute “an action in electronic form,” satisfying writing requirements under Saskatchewan’s Electronic Information and Documents Act.^[4] This Act is based on the UNCITRAL Model Law on Electronic Commerce, which has been adopted by numerous jurisdictions worldwide^[5].

Implications for International and Nigerian Law:

Notwithstanding this case was decided in Canada, it sets an international precedent which may have implications on the interpretation of contract law in Nigeria. Nigerian courts often consider persuasive precedents from other jurisdictions, especially those with similar legal systems.^[6] As the use of emojis becomes more prevalent in electronic communication across generations and cultures, it is essential for Nigerian courts to adapt and recognise them as valid forms of expression and communication in contract law.^[7]

Emojis and the Principle of Intent:

The South West Terminal v Achter Land case is actually not the first instance where an emoji has been recognized as acceptance of a contract. In a previous case Dahan v. Shakaroff^[8] In Israel, an emoji sent via text message was held to constitute acceptance.^[9] These cases reinforce the principle that emojis can convey not only an expression of intent but also serve as a form of writing.

Conclusion:

The Saskatchewan Court’s decision in South West Terminal Ltd. v Achter Land marks a significant milestone in the recognition of emojis as a valid form of communication in contract law. Emojis, such as the thumbs-up emoji, can constitute acceptance and satisfy the writing requirement in contractual agreements. Nigerian courts may choose to review and consider in the near future having taken into account the pros and cons, of this precedent and adapting their interpretation of written communication to include emojis. As technology continues to shape and influence the way we choose to communicate, it is vital for the law to keep pace with these changes to ensure fair and effective legal outcomes.

References

^[1] 2023 SKKB 116

^[2]  S. 6(1) of The Sale of Goods Act

^[3]https://www.westcentralonline.com/articles/court-case-involving-emoji-ruled-acceptance-of-contract

^[4] Saskatchewan’s Electronic Information and Documents Act

^[5] UNCITRAL Model Law

^[6] Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119 at 182. The general principle of law is that foreign precedents, that is, judgments gotten from other countries, are persuasive in Nigeria

^[7] In Adetoun Oladeji (Nig) LTD v Nigerian Breweries PLC (2007) LPELR-SC.91/2002 Hon. Justice Akintan JSC stated that: “the other point I will like to deal with is the controversy as to whether or not the principles of law laid down in Hadley v. Baxendale (1854) 9 Ex. 341 is applicable in Nigeria and binding on the courts in Nigeria. I agree with the view expressed in the lead judgment that generally speaking, decisions of English courts or any foreign courts are not binding on Nigerian courts but they are merely persuasive. I will, however, like to add that where Nigerian courts have followed a particular principle adopted from a foreign decision over the years, such as in the one in the Hadley v. Baxendale case, it will be totally erroneous to hold that such principle remains foreign in nature. I believe and hold that the said principles have ceased to be regarded as foreign in Nigeria. It has, no doubt, become part and parcel of our case law of contract. This is because the mere statement of the principles and citing any of the numerous decisions of this court where the principle had been adopted will be sufficient to make it binding on all courts in Nigeria”.2. The second exception is that Nigerian courts may resort to foreign decisions where there are no known Nigerian decisions on a principle of law. Thus, English authorities can be binding where the facts before a Nigerian Court are similar to the English case, and there are no known Nigerian decisions on the same set-out facts. Thus, in Omega Bank Plc. v. Govt. Ekiti State (2007) 16 NWLR (Pt. 1061), the Court relied on the foreign precedent of Derbyshire C.C. v. Times Newspapers in reaching its decision

^[8] תק (הרצ’) 16-08-3

^[9] An Israeli small claims court nevertheless held that the emojis signaled enough positive intent by Nir and Yarden to justify the landlord keeping the house off the market, and it awarded about $2,200 in lost rent to the landlord

Credit: OAL