Can a 👍 Emoji Create a Contract in Pennsylvania?
A recent case has lawyers wondering: can your emoji — without more — bind you to a major contract in Pennsylvania? One court said “yes.” There, the court held a party liable for failing to deliver 87 metric tonnes of flax (a flowering plant) after texting a “thumbs up” to a purchase offer.
Granted, the court was in Saskatchewan, Canada. However, in terms of contract formation, Canada follows the same English common law (judge-made precedent) as the United States. In fact, in both jurisdictions, the courts look for an “objective manifestation” of intent to accept an offer.
So, how can a “thumbs up” emoji create an acceptance?
In South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII), the court began its analysis by noting:
The parties disagree as to whether there was a meeting of minds which is the basis of a contractual obligation. A contract is only formed where there is an offer by one party that is accepted by the other with the intention of creating a legal relationship and supported by consideration (Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22 at para 35, 459 DLR (4th) 425 [Aga]).
The court performed a lengthy analysis. In fact, it considered opinions from legal experts on the issue of communicating through emojis. Ultimately, the court decided that the thumbs up emoji constituted an acceptance of the offer. As such, the court found the defendant liable for failing to sell 87 metric tonnes of flax to the Plaintiff.
Pennsylvania’s Appellate Courts Interpret Emoji Text Messages
Pennsylvania has not yet ruled on the “emoji acceptance” concept. However, our appellate courts have acknowledged that emojis do have consequences, in court. For example, in Commonwealth v. Danzey, 210 A.3d 333, 2019 P.A. Super 152 (Pa. Super. Ct. 2019), the superior court decided that texting a smiley face emoji — to the family member of a decedent in reference to the decedent’s death — was admissible to prove stalking.
Could Someone Else Have Sent the Emoji From Your Phone?
In Commonwealth v. Danzey, above, the Defendant challenged not only the meaning of his “smiley” emoji but also the admissibility of it. In fact, his lawyer claimed that anyone could have used the Defendant’s phone to send the harassing “smiley” text message.
However, as we’ve written, Pennsylvania Rule of Evidence 901 was amended to address this problem. “Digital evidence” — such as text messages — can now be
“connected” to someone via his ownership of the device and/or account for digital services.
Likewise, proof of Identity of the emoji sender can also come from: “possession [of the phone], control, or access to a device or account at the relevant time when corroborated by circumstances indicating authorship.” See Pa.R.E. 901 (11)(b)(ii).
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