Three elements are needed to create a valid contract: an offer, acceptance, and consideration. Although seemingly straightforward, on occasion, determining whether these elements have been met can become murky. A recent case from our neighbors to the north demonstrates a plot twist about one of the components of a contract: acceptance.  

As reported by the Australia Broadcasting Corporation:

Chris Achter, the owner of a farming company in Swift Current, Saskatchewan, had [texted] a thumbs-up emoji in response to a [texted] photograph of a flax-buying contract from a grains buyer in 2021. Months later, the buyer — which had been doing business with Mr Achter for several years — did not receive the flax as expected . . . The buyer, South West Terminal, argued that the emoji implied acceptance of contractual terms, while Mr Achter said he used it only to indicate that he had received the contract, but not to indicate his agreement.

In the texted photograph, the buyer had signed the contract. Although Mr. Achter never physically or digitally signed the contract, the Canadian court nonetheless ruled in favor of the buyer, indicating that the seller’s thumbs-up emoji was sufficient to indicate acceptance of the contract’s terms based on the prior course of dealing between the buyer and Mr. Achter. Specifically, as reported by the New York Times:

The judge noted that Mr. Achter and Mr. Mickleborough [of South West Terminal] had had a longstanding business relationship and that, in the past, when Mr. Mickleborough had texted Mr. Achter contracts for durum wheat, Mr. Achter had responded by succinctly texting “looks good,” “ok” or “yup.” Both parties clearly understood these terse responses were meant to be confirmation of the contract and “not a mere acknowledgment of the receipt of the contract” by Mr. Achter, wrote Justice T.J. Keene of the Court of King’s Bench for Saskatchewan. And each time, Mr. Achter had delivered the grain as contracted and had been paid.

Could this result happen in Washington? Potentially. Similarly to the Canadian court, a Washington court would likely consider the ongoing relationship between the parties and how contract acceptance had been communicated in prior transactions to determine if the seller’s purported acceptance was valid.

This type of confusion can easily be avoided by parties taking the time to be more careful both in their communications and in the terms of the proposed written agreement. For example, the proposed contract could have had language indicating that the contract could only be accepted if both parties sign and date it. And instead of texting a thumbs-up emoji, the seller could have responded, “Thank you so much for texting me this proposed agreement. I will review it and send you a signed and dated copy if I accept these terms.”

Do you need assistance ensuring your contract negotiations do not accidentally become an unintended commitment? Please let us know. We’d be happy to help.

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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