Publication

On 8 June 2023, the Supreme Court of Canada ruled that a supplier’s claim for debt collection from the buyer for the supply of linseed was justified due to the fact that the buyer had agreed to the terms of the contract by sending the supplier a “👍” or raised thumb emoji (see KING’S BENCH FOR SASKATCHEWAN, South West Terminal Ltd v Achter Land & Cattle [2023] SKKB 116).

The question arises from the judgment as to whether it is permissible under the Latvian legal system for a contract to be concluded or accepted by sending an emoji. For the sending of an emoji to be regarded as an acceptance or a confirmation of an offer (which entails an obligation on one of the parties to the contract to fulfil any obligation arising from a contract thus entered into), a certain set of circumstances must be evidently established.

Section 1404 of the Civil Code (Civillikums) stipulates that in each legal agreement it is necessary to consider the participants, subject, statement of will, components and form. If there is no dispute between the parties about the parties and the subject matter of the agreement, it should be considered how the statement of will from the parties (in the form of “👍”) would be assessed under the applicable provisions of the Latvian civil law.

Section 1427 of the Civil Code stipulates that bilateral or multilateral agreements require a coherent expression of intent by all parties to the agreement. A coherent statement of intent is aimed at the occurrence of certain legal consequences (see Section 1511 of the Civil Code). For example, in a transaction concerning the sale and purchase of a car, the seller wants to sell the car to the buyer, while the buyer wants to buy the car from the seller for a corresponding price. In this regard, the parties to such an agreement are seeking: (i) the transfer of ownership of the car; and (ii) the receipt of payment for the car.

On the other hand, according to the first paragraph of Section 1428 of the Civil Code, a party’s will may be expressed in words, orally, in writing or “by signs that have the meaning of words”. To date, “👍” has not been analysed much within the Latvian case-law, on the understanding that within  formal communication, especially legal documents, it is not customary to use emojis if it is not specifically stipulated as a condition. It cannot be ruled out that emojis will be used much more frequently in communication, including in formal communication, which may have certain legal effects under certain specific circumstances.

The Riga City Court, adjudicating on the dispute between the employee and the employer, has upheld that “👍” can be used as a “confirmation” for something (i.e. confirmation that employee will attend the meeting in person.)(see the judgment of the Riga City Court of December 27, 2022, in case No. C68346322). The conclusion of the Riga City Court was upheld on appeal and the Senate of the Supreme Court has subsequently refused to initiate cassation proceedings (see the judgment of the Civil Court Panel of the Riga Regional Court of 6 April 2023 in Case No. C68346322, CA-1044-23/1 and the decision of the Action Session of the Senate of the Supreme Court of 29 June 2023 in Case No. C68346322, SKC-740/2023). The judgement can therefore be considered as being final.

Section 1437 of the Civil Code states that the expression of intent must be serious. A statement made in the form of a joke has no binding legal consequences. To conclude that an emoji might be considered as an acceptance of an offer, it is necessary to evaluate the context in which it is expressed. The sign “👍” may have a completely different meaning, which may not indicate confirmation of something, for example, by assessing parties’ previous practice.

The Supreme Court of Canada, adjudicating on the dispute between the parties, concluded that there is a practice between the parties in how agreements are finalised. In particular, the seller in question sent, in electronic form, the text of the agreement, which specified all the essential elements of the agreement, asking for confirmation of the terms of the contract. In turn, the buyer in previous dealings with the seller confirmed the seller’s offer by sending a confirmation of the words “yes”, “yup” or “ok”. The buyer had made payments for transactions approved in this way on several occasions. Consequently, the previous practice of cooperation between the parties to the dispute did not leave the court in any reasonable doubt that, following the established practice between the parties, the buyer’s approval had been received and the seller had the right to demand the execution of a legally concluded agreement.

It is understood that throughout a long-standing practice of concluding uniform agreements, in which the parties have agreed on the subject and price of the purchase, only the quantity of the item to be sold changes, the parties may also agree on a current order in an informal manner. In such situations, it would not be problematic to establish the acceptance of the offer, since there is already an established practice of cooperation between the parties (see the third paragraph of Article 18 of the United Nations Convention on Contracts for the International Sale of Goods). A different situation could arise, however, whereby the parties are negotiating a possible agreement that is not long-term nor repeated cooperation. Section 1533 of the Civil Code stipulates that a contract is considered to be entered into only when there is a full agreement between the parties on “the essential elements of the transaction with the purpose of mutually binding each other”. Thus, it is necessary to assess whether the “👍” sending after receiving the offer indicates the clear will of the parties to be binding and enforceable.

It should be noted that the meaning of “👍” depends on the factual context in each case, and it cannot always be assumed that the receipt of “👍” from the other party to the agreement constitutes the conclusion of the agreement. However, if there is a full agreement between the parties on the essential elements of the agreement and one of the parties has reserved the right to agree on certain ancillary provisions (for example, the delivery period), then the sending of “👍” may not be considered as a will to form an agreement since such communication will be considered a preliminary discussion, and not a legally concluded agreement (see Section 1534 of the Civil Code).

Notably, the Supreme Court of Canada recognised that “👍” is to be recognised as a signature-like expression of will (within the meaning of Canadian law) that confirms the buyer’s consent to purchase the goods in question. As mentioned above, under a Latvian law context, “👍” could be considered as an expression of intent confirming the buyer’s consent to be bound by the seller, however, sending “👍” could not be considered as a signed document, especially if one of the preconditions for the contract to become effective (as agreed by the parties in the contract) is that both parties sign the contract. The first paragraph of Section 5 of the Law on the Legal Force of Documents (Dokumentu juridiskā spēka likums) stipulates that the document must be signed by hand. The second paragraph of Section 3 of the Electronic Documents Law, on the other hand, provides that a document shall only be considered as being signed by hand if it has a secure and valid electronic signature. A qualified electronic signature shall be considered to be a secure electronic signature within the meaning of Article 3, paragraph 12 of the Regulation No. 910/2014/ES of the European Parliament and of the Council of 23 July 2014. That is, by signing a document with a secure electronic signature, it is possible to establish the identity of the signatory. Consequently, the opposing party would not be able to assume that the buyer has signed the agreement with an emoji and the consequences arising from the signing of the agreement under Section 1431 of the Civil Code had occurred. In particular, it cannot be assumed the other party to the contract who “signs” the agreement in that way has expressed his/her will to the content of the agreement (see paragraph 12.3 of the Senate judgment of 31 October 2016 in Case No SKC-53/2016 (C17147209)).

Conclusions:

“👍” may be regarded as consent to the offer if there is a clear intention on both sides to enter into the relevant legal agreement.

Sending an “👍” emoji will not always be considered as consent to relate to the other party in any way and evaluating the meaning of the emoji “👍” depends upon the factual context of its use, the history of cooperation between the parties, the type and form of the transaction.

By sending “👍”, it cannot  be assumed the opposing party signed the agreement by hand and thus agreed to the content of the agreement.