Courts ⚖ must constantly adapt to new technologies. People use digital communications in all spheres of life, including to enter into contracts. A Saskatchewan court had to examine the meaning of a thumbs-up emoji (👍) used in a text message relating to a contract. The court’s decision surprised many…
In fall 2023, Éducaloi taught a clear legal communication course at the McGill University School of Continuing Studies. The course was offered as part of the Graduate Diploma in Legal Translation program. For the end-of-term assignment, students had to apply clear communication principles to draft an original legal information text. Éducaloi selected two of the best texts for publication on its website.
Among the entries, Marie-Ève Frenette’s text on a subject of great interest to the general public stood out.
The case at a glance
The case dates back to March 2021. A buyer wanted to purchase 87 tons of flax from the seller. The buyer signed a paper version of the contract and sent a picture of it to the seller in a text message. The seller replied with the 👍 emoji, and did not deliver the flax. The court concluded that the seller had accepted the contract and should have made the delivery.
According to the court, the emoji👍 reflected the seller’s acceptance. This meant that the parties had come to an understanding. The contract was therefore valid under Saskatchewan law.
The court took many facts into consideration before coming to this conclusion. In this case, the buyer and the seller had a long-standing relationship. They had entered into four similar contracts in the past. Each time, the buyer and seller discussed the contract over the phone. The buyer would then draw up a contract and sign it by hand, then send a photo to the seller by text message, asking for confirmation. The seller’s responses were always very brief (“OK”, “yep”). The seller then delivered the purchased product.
The court also found that 👍 was a valid e-signature, as the emoji met both of the signature’s goals, namely:
- to identify the person who signs;
- to express their consent.
How does this work in Quebec?
Saskatchewan laws are different from Quebec laws. But like the law in other Canadian provinces, Quebec contract law is also flexible.
A contract does not necessarily have to be in writing, nor does it have to be signed. For instance, a contract can be verbal. As long as there is a mutual agreement between the parties.
This mutual understanding involves two stages:
- One person makes an offer;
- The other person accepts this offer.
A person can accept an offer explicitly or implicitly. This is a question of fact, which courts are often asked to examine.
However, some contracts must be made in writing and must respect other conditions set by law in order to be valid. This is the case for contracts made between a merchant and a consumer, for example.
Once a contract is made, the parties must respect it.
Signatures in the digital age
A signature can take many forms. It can be more than just writing your name on a paper document.
In Quebec, we consider that a signature is the distinctive mark or name that a person uses regularly.
As mentioned previously, a signature has two goals:
- Identify the person;
- Express their consent.
A signature could then theoretically be a number or a drawing, as long as it meets the two objectives mentioned above.
What’s more, an e-signature is just as valid as a physical signature on a paper document, provided that the legal requirements are met. To be valid, an e-signature must:
- be applied to a valid electronic document, i.e. a document whose content is intact and has not been altered;
- establish a link between the person and the electronic document, i.e. confirm the person’s identity.