Judgments handed down in two recent cases in the UK and Canada provide good examples of how contract formation is developing in an increasingly digitalized world and the necessity to exercise caution when communicating with counterparties, even via informal or casual mediums.
In Javee Homes Ltd v Fincham (t/a Fincham Demolition) [2025] EWHC 942 it was ruled that the claimant’s request via WhatsApp for the Defendant to undertake demolition work constituted an offer, the Claimant’s simple response; “yes” constituted acceptance and the other messages detailing the associated fees for the job were deemed to constitute an offer of consideration. Thus, the three key components of contract formation had been met.
A similar decision was handed down in the Canadian case Achter Land & Cattle Ltd v South West Terminal Ltd, 2024 SKCA 115. In this case, it was held that the Claimant’s response of a emoji to a photograph of the proposed contract’s first page shared by the Defendant via WhatsApp, was deemed to form a legally binding contract. The Court gave weight to the previous correspondence which had been shared between the parties, where informal messages such as “OK” and “Yup” had been used, thus meaning that the Defendant could be deemed to reasonably assume that the thumbs up emoji was an acceptance of the contract by the Plaintiff.
Businesses should ensure that all staff are aware that they should exercise causing when discussing business with their counterparties via informal platforms such as WhatsApp and that text messages can form legally binding contracts. Marking all such communications “Subject to Contract” eliminates any potential risk for contracts to be inadvertently entered into and businesses would be well advised to keep a paper trail of all correspondence irrespective of the medium of communication.
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The content of this article is provided for information purposes only and does not constitute legal or other advice.
