Ironic Ruling

My kids are very fond of reminding me that I’m old. I don’t understand their abbreviated words or the acronyms they use when texting. And I certainly don’t understand emojis.

I will often send a heart emoji along with a text to my wife. Or, if my buddy, Pearl, asks if I want a ride to softball, I will respond with the ‘okay’ emoji.

But some people will send entire messages consisting solely of emojis. Many of them have double meanings, so I feel like I’m Indiana Jones in that I need a leatherbound notebook with a legend in it to decipher these hieroglyphics. Apparently, some of their double meanings are even R-rated.

That’s why I simply avoid emojis in my texts – I don’t want to send something that could get misinterpreted. And I bet Chris Achter wishes he did the same.

Chris and Bob Achter are Canadian farmers. In March of 2021, the pair had phone conversations with grain purchasers from South West Terminal, Ltd. who were wanting to buy flax. The suppliers were willing to pay $17 per bushel for delivery in October, November or December of that year.

SWT then prepared a contract for Chris Achter to sell them 86 metric tons of flax for $17 a bushel and deliver it in November. Kent Mickleborough, SWT’s representative, signed the contract in ink and then texted a photo of the contract to Chris Achter along with the message “Please confirm flax contract.” Chris responded with a “thumbs-up” emoji.

November came and went, however, and Achter never delivered the flax. By the fall, the price of flax had skyrocketed to $41 per bushel. As a result, SWT sued Achter for breach of contract.

In court documents, Mickleborough said he had done at least four other contracts with Achter via text. While Achter had previously responded by typing “ok”, “yup” or “looks good,” this time he used the “thumbs-up” emoji. Mickleborough said he had understood that Mr. Achter “was agreeing to the contract” and that it had been “his way” of signaling that agreement.

Achter claimed “the thumbs-up emoji simply confirmed that I received the Flax contract. It was not a confirmation that I agreed with the terms of the Flax Contract,” he explained. “The full terms and conditions of the Flax Contract were not sent to me, and I understood that the complete contract would follow by fax or email for me to review and sign. Mr. Mikleborough [sic] regularly texted me, and many of the messages were informal.”

Achter’s attorney, Jean-Pierre Jordaan, is in his 40s and thinks like I do. In court papers, he argued that “allowing a simple 👍 emoji to signify identity and acceptance would open up the flood gates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean.” He fears “the courts will be inundated with all kinds of cases if this court finds that the 👍 emoji can take the place of a signature.”

Surprisingly, Justice T.J. Keene of the Court of King’s Bench for Saskatchewan, who has been out of law school for over 40 years, ruled in favor of SWT. He wrote, “I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a 👍 emoji.” He ordered that Achter owed SWT $82,000 plus interest and costs for failing to deliver the flax.

Apparently Achter plans to hire an attorney to appeal the decision. First, he just needs a little seed money.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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