Assent by Any Other Meme Would Smell as Sweet: A Contract Law Development


          Every law student and the overwhelming majority of legal drama viewers can tell you the basic requirements of forming a contract: Offer, Acceptance, and Valid Consideration. Each of those components spawns an entire field of jurisprudence and nuance. Ambiguous offers, no meeting of the minds, promises to enter contracts… the field of contract law is one of the most fundamental in all of law, and in more stalwart debates can be argued to encompass all of law.

Social Contract Theory roots the criminal law in a social contract (implicitly entered into at birth and continuously accepted through deciding to continue to live), tort liability was described to me by a good professor as the implicit contract between all people to have the right to live life with a certain standard of care afforded to them, and the exchange of goods and services can only be enforced if it is done according to the tenets of contract law…

Hopefully this sets the stage for the importance of a new development in contract law coming out of Swift Current, Saskatchewan Canada, a city nicknamed Speedy Creek with the motto: “Where Life Makes Sense”. All 24.04 km² of Swift Current held its breath, I’m sure, as Justice Keene rendered the decision that a confident cartoon representation of a hand with the thumb extended upwards constitutes valid acceptance and signature to be bound by the terms of a contract. 👍

Let’s dig a little deeper.

The Issue:

To set the goalposts in technical terms, the Plaintiff, South West Terminal Ltd., claims they and the Defendant, Achter Land & Cattle Ltd., entered into a contract for 87 metric tonnes of flax seed. The Defendant asserts: they did not.

The Saskatchewan Sale of Goods Act reiterates the components of a valid contract and the need for a valid contract in this situation:

“Section 6(1) A contract for the sale of goods of the value of $50 or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold and actually receive the same or give something in earnest to bind the contract or in part payment or unless some note or memorandum in writing of the contract is made and signed by the party to be charged or his agent in that behalf.” (emphasis added)

I do not have my finger on the pulse of the market but I will venture forth and say 87 metric tonnes of flax seeds cost more than $50 CAD. So, as the Defendant claimed, there needed to be a note or memorandum in writing signed by the party to be charged.

No signed note or memo, no contract.

Open and shut, right? 👎

Old Legislation New Tricks: How a Law from 2000 Gave us the Framework to Handle Emoji Consent

In 1999 famed Canadian superstar Keanu Reeves brought philosophies on the future to life in The Matrix. In November 2000 the Saskatchewan legislature passed The Electronic Information and Documents Act, 2000 into law which held in its pages prophetic distinctions that bore fruit in our flax seed case. I draw no correlation nor causation between the two events, I leave that to the jury.

“Section 18

(1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed:

(a) by means of information or a document in an electronic form; or

(b) by an action in an electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.

(2) A contract shall not be denied legal effect or enforceability solely by reason that information or a document in an electronic form was used in its formation.” (Emphasis added)

Justice Keene found that a thumbs up👍 emoji is “an action in electronic form” that can be used to allow to express acceptance.

How about a little context?

Factual Matrix

          The 69 paragraph decision is quite delightful and a novelty being full of emojis but I will do my best to summarize it to the extreme.

SWT is a grain and crop inputs company, and Achter Land & Cattle Ltd. is a farming corporation. SWT has purchased grain from Achter through various deferred grain contracts since approximately 2012. An SWT Representative sent a text message to producers including Bob Achter and Chris Achter:

“All Divisions – – Kent Mickleborough – Flax Prices : Flax 1Can(max 6% dockage) $22.50/bu Apr. $17.00 Oct/Nov/Dec del”

Calls were exchanged with the producers Bob and Chris and a resulting contract was drafted by SWT for 86 tonnes of flax seed with the delivery period of “Nov”.

Mr. Mickleborough the SWT representative applied his ink signature to the contract, then took a photo of the contract using his cell phone. He then texted the photo of the contract to Chris Achter with the text message:

“Please confirm flax contract”.

Chris Achter, owner and operator of the corporation, texted back from the same number a “thumbs-up” emoji.

No flax seed was delivered.

Contractually Binding Hieroglyphs

The Defendant claims the thumbs up emoji meant he received the contract. It was not an agreement to the terms, as he would not enter a contract without an Act of God clause specifically.

Editorial special shoutout to the historic objection by Defendant Counsel:

“MR. JORDAAN:         Objection. My client is not an expert in emojis.

MR. MARSCHAL:      Okay. But he does send emojis, correct?

A.         Yes.”

Justice Keene’s methodology starts with referring to’s definition of the thumbs up emoji. It was used as confirmation evidence to the Judge’s understanding of the meaning.

“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 👍 emoji. […]

 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. […]

I agree that this case is novel (at least in Saskatchewan) but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like.

Justice Keene found that that the signature requirement was met by the thumbs up 👍 emoji originating from Chris and his unique cell phone.

The Judge issued summary judgment against the Defendant for damages in the amount of $82,200.21 payable to SWT plus interest.

Consensus Ad Emoji: Challenges Ahead

          A problem with trailblazing cases is their rulings are tailored to the facts of the case. At the end of the day this is about justice for the Parties in court today.

The justice-keen-eyed among you may have felt where the facts shaped the outcome. But what about other facts 👽?

In this case there is no issue with the authenticity of the text message which is the underlying purpose of the written and signed requirement. There was a history of communication through text messages and them accepting and signing via text messages (just not through emojis).

The meeting of the minds necessary to form a contract in this case relied on those facts.  

I invite you to consider section 19 of the Saskatchewan Electronic Information and Documents Act, 2000 in a section titled “Involvement of electronic agents” that states:

“19(1) […]“electronic agent” means

  • a computer program, or any electronic means,
  • used to initiate an action or to respond to
    • electronic information,
    • documents or
    • actions
  • in whole or in part without review by an individual at the time of the response or action.

(2) A contract may be formed by the interaction of an electronic agent and an individual or by the interaction of electronic agents.” [Edited for emphasis]

I hope there is not too much at stake when electronic agents disagree about the meaning of a contractually binding emoji ❤️

The future is bright ☀️,


Follow Up: Would/Could the court make a reasonably exhaustive list of emoji meanings?

*All lawyers in unison*: it depends.

Did the court make a reasonably exhaustive list of emoji meanings? They did not. They did not even generalize that the thumbs up emoji is sufficient, just that it was sufficient in this case.

But could they?

Let’s start with “No”:

Language in general is ever shifting and the meaning of words and the emergence of new slang and phrases is nothing new to tackle for the law.

Stare Decisis is the concept that similar cases are treated similarly. In these types of cases the meeting of the minds required to form a contract is so heavily dependent on the factual context that it can feel very daunting to try to match cases or generalize from them.

The analysis is generally the same as any case disputing meeting of the minds. History, prior dealings, performance… So an exhaustive list of meanings for emojis is not feasible, but also it seems not very useful since we need to do the full analysis every time anyway.

On the other hand… “Yes”

It is conceivable that at some point in the future, there will be a sufficiently rich body of caselaw which covers a wide enough range of scenarios such that we would have a functional equivalent to an exhaustive list of emoji meanings.

This is chasing a moving target. Language will change, emoji use has and will continue to change…

Until then we will tackle this task one case at a time.

The future is bright,



Nawar Kamel is CEO and Co-Founder of Experto AI Inc., and licensed Canadian lawyer in Ottawa, ON, Canada. 

Nawar started his academic path studying philosophy and went on to get his masters in philosophy focusing on social contract theory from York University. Nawar graduated from the University of Ottawa Faculty of Common Law and was a litigator spending his days fighting in the courts on behalf of his clients until he went on to found Experto AI Inc., which was established to create AI tools geared towards lawyers and legal researchers. 

Leave a Comment

Your email address will not be published. Required fields are marked *