The case of the day is South West Terminal Ltd. v. Achter Land & Cattle Ltd., 2023 SKKB 116, a Saskatchewan breach of contract case. It’s not a typical Letters Blogatory case, but it’s fun, and I expect to see it in contract casebooks in the future. Law students my remember it as the “thumbs up emoji” case in the same way the we remember the “hairy hand” case, or the “the “carbolic smoke ball” case. Casebooks like contract cases involving agricultural goods sold by the bushel or the ton instead of swap agreements or complicated services contracts, I think because they’re more picturesque. Anyway, Archer Land and Cattle was in the business of selling grain and had sold grain to South West many times over the last decade. In 2021, South West’s agent, Kent Mickleborough, sent a text to potential sellers, including Achter’s owners, Bob and Chris Achter:

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

Bob Achter called Mickleborough, and following the conversation, Mickleborough drafted a contract for the purchase of 86 metric tons of flax at $17 a bushel, or about $670 a ton, for delivery in November 2021. Mickleborough signed the contract, took a photo of it, and texted the photo to Chris Achter, with the following message:

Please confirm flax contract.

Chris Achter responded by text as laconically as I imagine a Saskatchewan farmer would: 👍

By November 2021, the spot price for flax was $41 per bushel. Achter did not deliver the flax, and South West sued. The interesting questions are: did the exchange of communications form a contract? and if so, is the contract enforceable in light of the statutory requirement of a signed writing in the Saskatchewan statute on sale of goods?

The evidence was that Chris Achter had responded to other texts from Mickleborough , with messages like “Looks good,” or “OK,” or “Yup,” and then performed the contracts. That evidence shows that there was a course of dealing about how contracts between the parties were formed that precluded any argument that the informality of responding by text could mean that there was no meeting of the minds.

Chris Achter’s evidence was that he would never have entered into such a contract without an act of God clause. All that he meant was to acknowledge receipt of the document.

But what about the emoji? There was a suggestion that Chris Achter did not subjectively understand that 👍 was equivalent to writing “agreed” or “OK.” But as the judge noted, the question was the objective meaning of the emoji, if there is one. The judge, citing a dictionary (who knew emojis were defined in the dictionary?) and his own experience, concluded that the objective meaning of the emoji was an indication of assent. The judge also noted the implausibility of the implication of Chris Achter’s view—did Achter really believe there was no contract for the sale of the flax during the growing season?

Like the UCC, the Sale of Goods Act in Saskatchewan has a statute of frauds requiring a signed note or memorandum of the contract. Apparently in Saskatchewan there is no exception for contracts between merchants (contrast UCC Art. 2-201(2)) . Can the emoji serve as a signature? Here, I think the issue is not perfectly clear. The judge found that the combination of the emoji and the use of Chris Achter’s cell phone number to send the message constituted a signature. I think that may be right, but I can imagine it being wrong.

This case is really a “back to basics” reminder about what a contract is. I can’t speak to the law of Saskatchewan particularly, of course, but here, the judge found that the evidence showed that the parties had reached a meeting of the minds about the terms of their agreement and that Achter had accepted the offer by doing something that a reasonable person would understand as an acceptance given the parties’ course of dealing. The statute of frauds introduces a little bit of complexity in certain contexts including the sale of goods, but as a general matter, the contract does not even need to be written down.