Embracing Digital Gestures A Review Of Canada’s Landmark Decision On The Use Of “Thumbs Up Emoji As A Mode Of Acceptance For A Legally Binding Contract.
Introduction
In today’s ever-evolving digital landscape, technology has not only transformed our communication and interaction but has also significantly impacted the fundamental aspects of legal agreements and what constitutes a binding contract. The importance of technology in commercial transactions and contract formation has revolutionized the traditional methods of negotiation, offer, consideration, and acceptance. With this era of technological innovation, the trending utilization of digital gestures as a means of contract acceptance has taken centre stage as an emerging trend.
As virtual transactions, remote collaborations, and electronic devices define this era, the legal community continues to navigate uncharted territories in formalizing agreements. There has also been a rapid growth of businesses and commercial transactions from individuals and corporations using digital platforms. Consequently, we have started to witness non-conventional means of signing off on contracts as opposed to a paper-based contract-signing process. This shift, without a doubt, enhances efficiency and expediency, but not without its unique challenges which now call for legal adaptation and interpretation.
One notable development of this technological era is the growing prominence of digital gestures in contract formation. Traditionally, the binding nature of a contract, amongst other things was characterized by the signature of the contracting parties on a physical document. However, with the advent of digital gestures – encompassing actions and conducts such as clicking “I agree,” “yup“, tapping an icon, or even a virtual “thumbs-up” – appear to be sufficient modes of signing off on a contract.
In some jurisdictions, courts have upheld click-wrap contracts, where a customer clicks an ‘I agree’ button to indicate acceptance. Another type of agreement is the “browse-wrap.” Agreement, where customers are prompted to scroll through terms and conditions located on a website without needing to explicitly indicate acceptance. These terms and conditions in browse-wrap agreements have gained little support from courts because of the challenge of determining if the customer actually read them. Nevertheless, if a website is consistently used, especially by a business customer, it’s more likely to signify acceptance of the browse-wrap terms and conditions.
This emerging trend raises new questions regarding the validity and enforceability of gestures as a form of acceptance in an agreement. The Courts and legal scholars are saddled with the responsibility of determining the authenticity or otherwise of these digital expressions and their equivalence to traditional signatures.
BRIEF FACTS OF SOUTHWEST TERMINAL LTD. V ACHTER LAND & CATTLE LTD
This intersection of technology and contract law came to the fore in the recent Canadian case of Southwest Terminal Ltd. v Achter Land & Cattle Ltd 2023 SKKB 116 (CanLII). In this case, Southwest Terminal Limited (“SWT”), a grain and crop inputs company based in Saskatchewan Canada had engaged in the sale and purchasing of grains from Achter (Achter Land & Cattle Ltd (ALC), a farming corporation owned and operated by Chris Achter) through deferred grain contracts since 2012.