The majority use emojis as a form of communication. It's a quick way of saying "OK." But have you ever wondered if a thumbs-up means that you have entered into a legally binding contract?
A couple of recent court cases, both in the UK and Canada, have answered whether a '👍🏼' emoji amounted to acceptance of an agreement.
In both cases, the court held that it was. In the English case (Southeaster Maritime Ltd v Trafigura Maritime Logistics Pte Ltd), the court recognised that the thumbs-up emoji is an accepted legal form of language signifying acceptance.
These decisions show how our digital communication habits are changing how we make agreements, even in the eyes of the law.
This article summarises and clarifies some key questions about how contracts are formed under English law.
What are the essential elements of a legal contract?
The essential elements are:
- Offer - someone must make a clear and definitive proposal to do something or refrain from doing something in exchange for value.
- Acceptance - the person receiving the offer can say yes, no or suggest changes. If they agree without conditions or modification, that's acceptance.
- Consideration – there must be something of value exchanged. For example, money, goods or services.
- Intention to create legal relations – those involved in the agreement must intend to enter into a legally binding agreement.
- Capacity – those agreeing must have legal capacity to contract e.g. be of sound mind and appropriate age.
- Legality – the subject matter of the contract must be legal.
What is an offer in the context of contract formation?
An offer is a clear indication of one side's willingness to enter into a contract on specific terms, made with the intention that it will become binding upon acceptance.
What is the difference between an offer and an invitation to treat?
An offer is a proposal that, once accepted, forms a contract. An invitation to treat is simply an indication that someone is open to negotiations, but it is not itself an offer. For example, goods displayed in a shop or advertisements in newspapers are usually considered invitations to treat, not offers.
When is an offer considered accepted?
Generally, an offer is accepted when the person receiving it agrees to all its terms without conditions or modification. This agreement can be communicated via email or by signing a document letting the person who made the offer know that you accept the terms. However, some offers need to be accepted in a specific way, so it is important to follow the instructions outlined in the offer.
Can an offer be revoked?
Yes. An offer can generally be revoked at any time before acceptance unless it is supported by a promise to keep the offer open for a specified period. Generally, once the offer is accepted, it becomes a binding agreement, and it can no longer be revoked.
What does 'intention to create legal relations' mean?
For a contract to be valid, both sides must intend for their agreement to have legal consequences. In commercial or business agreements, this intention is generally presumed. However, in social or domestic agreements (e.g., between family members or friends), there is usually a presumption that there is no intention to create legal relations unless proven otherwise.
Can a contract be formed without a written agreement?
Yes. A contract can be formed orally or even through conduct as long as the essential elements (offer, acceptance, consideration, and intention to create legal relations) are present.
This is why a simple use of an emoji could amount to acceptance.
The takeaway point is: be careful using emojis. The simple use of a '👍🏼' could make you contractually and legally liable.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
