Judge Timothy Keene ordered a farmer to pay more than $82,000 for failing to deliver tons of flaxseed to a buyer he texted with the famous emoji.

The farmer defended himself by saying that he only wanted to express that he had received the message from the buyer. However, the judge ruled that the “thumbs up” emoji showed approval of the motion.

“The court readily recognizes that an emoji is a non-traditional way of signing a document, but in the circumstances it is still a valid way of conveying the purpose of a signature,” the judge wrote in his decision.

He argued that the farmer and the buyer had previously entered into contracts by texting them words like “ok” and “yup.”

In addition, the judge based his decision on the definition provided by the online dictionary Dictionary. According to this English dictionary, the thumbs-up emoji “is used to express approval, agreement, or encouragement in digital communications, particularly in Western cultures.”

consent before the form

Vincent Gautrais, a lawyer specializing in e-commerce law and a lecturer at the University of Montreal, is not surprised by this decision.

“Ever since Roman law, there has always been some freedom to express consent. “In 1955, a judge issued a verdict that you can still make a contract even if there are smoke trails on both sides of the mountain,” explains the author of a book about the legal problems that technology poses.

“We can therefore imagine that a thumbs-up could be taken as an expression of consent,” he adds.

“Several contracts related to the purchase of consumer goods are not associated with a very cumbersome formalism,” he emphasizes. Contracts are often simple verbal agreements, others must be in writing, such as taking out a car loan. The Office de la Protection du Consommateur (OPC) recommends that you request a written contract from the retailer you are doing business with.

In fact, it is more about the consent of both parties than the form of the contract. Article 1385 of the Quebec Civil Code states that “a contract is formed by the sole exchange of consent between persons capable of contracting, unless the law also requires compliance with a particular form as a condition of its formation.” The parties submit to the Contract conclusion of a solemn form. »

A possible decision in Quebec

This decision, a first of its kind in Canada, could be replicated elsewhere in the country, particularly in Quebec, where the law has incorporated the new reality of digital evidence.

“From a legal perspective, I don’t see any major differences between Quebec and Saskatchewan,” explains Vincent Gautrais. The bases on which judges base their decisions are broadly the same. Regardless of the province, the notion of signature has two main functions: identifying the person and expressing consent. »

While it’s likely that a similar decision will be made in Quebec, that’s less the case in Europe, for example. “Judges in Canada are quite technology-friendly and recognize its use more than in Europe,” says the lawyer.

In its ruling, the Saskatchewan court recognized that emojis have become part of everyday communication and that courts must recognize this reality.

“This court cannot (and should not) seek to stem the tide of technology and widespread use of emojis, which appears to be the new reality of Canadian society.” Courts need to be prepared for the new challenges arising from the use of emoji emojis and the like,” concludes Judge Timothy Keene.

Maybe you should also know before you send your next text message… 👍

Also read: Buying a car: Read the contract carefully And Small Claims Court: What you should know and how to prepare