Two thumbs up: Lessons gleaned from the Saskatchewan Court of Appeal decision affirming an emoji can constitute a signature

The Saskatchewan court ruling — that a thumbs-up emoji sealed the deal in a $58,000 flax contract — garnered international headlines. It particularly resonated with those who have fallen into a pattern of informal negotiations and remote signatures via text.

Achter Land & Cattle Ltd. disagreed with the court's ruling and appealed the decision, arguing that there was no agreement, but even if there was one, it was unenforceable because of s. 6(1) of The Sale of Goods Act. 

In Achter Land & Cattle Ltd. v South West Terminal Ltd., a divided Saskatchewan Court of Appeal ruled two-to-one that Mr. Achter had accepted a flax delivery contract over text by sending a thumbs-up emoji — and that it satisfied the requirements of section 6 of The Sale of Goods Act, including the need for a signature.

Even though it can be tempting to respond with a quick 👍 to a message, the decision should make you think twice before sending that text.

Background

Achter Land & Cattle Ltd. (ALC) has been selling grain to South West Terminal Ltd. (SWT) since 2012, and in 2020, like many others during the pandemic, began entering contracts over text.

On March 26, 2021, Mr. Mickleborough of SWT sent a text to Mr. Achter of ALC, offering to buy flax to be delivered in the fall. Shortly after, the parties came to a verbal agreement over the phone. Mr. Mickleborough then drafted the standard contract, signed it, and sent a photo of the front page via text to Mr. Achter, along with a message to “please confirm flax contract.”

Mr. Achter responded with a “thumbs up” emoji with no additional text.

Ultimately, the flax was never delivered to SWT in November, and SWT sued ALC to enforce the contract it claimed was entered via this text exchange.

The Legal Issues

The specific issues addressed on ALC’s appeal were:

• Did the judge err in finding parties enter into a contract?
• Did the exchanged text messages meet the requirement for a "note or memorandum in writing" under The Sale of Goods Act?
• Did the thumbs-up emoji satisfy the signature requirement that a contract be "signed by the party to be charged or his agent" within the meaning of s. 6(1) of The Sale of Goods Act?

1. Context is Everything

To determine whether the parties intended to enter a contract, courts will examine all of the relevant circumstances surrounding the contract. This analysis is not based on the parties’ subjective perspectives but rather on how an objective, reasonable bystander would view their words and actions.

An emoji will not always be seen as a party’s way of accepting a contract, but it did for ALC. The parties had a history of entering into contracts over text. Although Mr. Achter may not have meant to accept the contract with his emoji, it was not unreasonable for the judge to find that a reasonable observer would believe that ALC was agreeing to enter the contract.

2. Say What You Mean

Context is important because words alone do not have an absolute meaning. Courts will not enforce a contract that contains ambiguous or uncertain terms that are essential to the agreement. However, the courts will make every reasonable effort to determine the meaning where possible. Once again, context matters and may fill this gap if the parties are not clear and specific enough.

ALC argued that Mr. Achter’s use of the emoji was only meant to express that he had received the agreement. To support this argument, ALC argued that a thumbs-up emoji is inherently ambiguous and not commonly used to indicate acceptance. 

Nonetheless, the majority of the court found that in the context of this case, the emoji could be interpreted as ALC accepting the contract over text, as it had done many times before. While the emoji will not always mean “I agree,” it did in these texts.

3. Include All Essential Terms

A binding contract will be found to exist when agreement has been reached on the essential provisions intended to govern the contractual relationship. What is “essential” will depend on each contract, but typically requires that the parties, property and price be clearly described and agreed upon.  

In Achter, there were no missing or unascertainable essential terms in SWT’s contract. Despite ALC not receiving the reverse side of the contract, a reasonable, objective observer would have believed that the terms and conditions were the same as what the parties had previously agreed upon in similar contracts. Furthermore, all of the essential terms were on the first page, which was texted to and confirmed by Mr. Achter.

4. Texts Can Form a Written Contract

Canadian courts have found that emails can meet the requirements of being “in writing” and “signed.” These same principles apply to text messages. As such, the majority had no issue finding that the texts exchanged between ALC and SWT were in writing as required.

5. An Emoji can be a Signature

While it is best practice to actually sign documents, there are times when a “signature” can be a mark. Signatures have two purposes: to identify the person who is signing and to establish their approval of the document’s contents. If a mark satisfies these purposes, it can be a signature.

Despite being a non-traditional way to “sign” a document, Mr. Achter’s emoji met the purposes of a signature — Mr. Achter’s cellphone number identified him as the signator, and the emoji conveyed acceptance.

It was this specific combination of the metadata and the emoji that constituted the signature. Although Mr. Achter may not have known that he was “signing” the contract, this did not matter so long as he intentionally communicated his agreement and did so in a way that made it clear that he was the one communicating. Though not every text message will be found to convey acceptance, it is best to use caution when answering any offer to avoid entering unintended, binding agreements.

The Dissent

In a dissenting opinion, Justice Barrington-Foote agreed that a contract existed between the parties, but disagreed that Mr. Achter’s text was a signature. The judge found that a signature should align with its traditional meaning — writing one’s name or a distinctive mark — while adapting to the widespread use of electronic communication. A simple affirmative response via text should not be enough to count as a signature.

Leave To Appeal to the Supreme Court Of Canada

Despite this ruling from the Saskatchewan Court of Appeal, this case may not be finished its journeys through the courts. On February 10, 2025, ALC filed an application for leave to appeal to the Supreme Court of Canada. Whether leave is granted will depend on whether the Supreme Court of Canada finds that the case presents a question of public importance sufficient to warrant its intervention. It will likely be another few months until this application is decided.

In the meantime, this case serves as a cautionary tale to communicate clearly or risk having your words and emojis misconstrued. By taking a few extra seconds to type out your words, you may save yourself time and money and avert a contractual dispute and potential litigation.

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