By: Timothy Murray MURRAY, HOGUE & LANNIS
A mid-level executive at a client’s company routinely included a smiley face on everything the executive wrote. It didn’t matter what it was—a...
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By: Timothy Murray MURRAY, HOGUE & LANNIS
A mid-level executive at a client’s company routinely included a smiley face on everything the executive wrote. It didn’t matter what it was—a letter, a greeting card, and presumably even his grocery list. The smiley face practically became part of his name, akin to when the late musician Prince changed his name to an unpronounceable symbol.
WHEN THE EXECUTIVE INCLUDED A SMILEY FACE ON A thank you note or a letter of commendation, it was regarded as a friendly gesture, and no one objected.
But some people began to suspect that maybe—just maybe—he might be overusing the smiley face when he put it at the end of a note saying, “More details will follow as we receive them, but I have just learned that our human relations director passed away last night.”
Whether we like it or not, the dreaded emoji—the smiling face, the thumbs up, and all the rest—have become a more important part of peoples’ electronic communications than the exclamation point and the semi-colon. “Emojis are a global phenomenon. Ninety-five percent of the online population sends over ten billion emojis each day.”1
It would be foolhardy to assume that emojis are confined to social settings. Newsflash: our clients use them in business, and sometimes they even use them to make informal contracts. The ease and convenience of using a thumbs up emoji often outweigh the lawyer’s pleading and cajoling not to use it.
A former head of global contracts at a Fortune 50 company said this: “I was in a negotiation with a client and they sent me an email with their counterproposal. My response was an emoji. Specifically, a thumbs up. After I sent that I realized I had just contracted with the client using an emoji! There is no other paperwork for this thing we are doing together.”2
The fact that businesspeople use emojis in contractual settings does not make it a prudent practice. An emoji sent in response to an offer can lead to unintended contracting, and emojis in texts, emails, and tweets can induce reasonable reliance that subject the sender to liability if that reliance is misplaced.
In short, the legal landscape of contracting by emoji is littered with traps for the unwary. Our clients ought to be aware of them, and you might want to add this topic to your standard cautions about contracts.
Before discussing the legal landscape of contracting by emoji, it is well to note that there are many different kinds of emojis,3 and they vary in the risks they pose from a contract law perspective. The thumbs up emoji is the one most likely to find its way into informal contracts. There is a consensus about its meaning: Dictionary.com’s Emoji Dictionary defines it as follows: “WHAT DOES THUMBS UP EMOJI MEAN? The thumbs-up emoji is used to express assent, approval, or encouragement in digital communications, especially in Western cultures.”4
While the thumbs up emoji lacks the clarity of saying “I accept,” it generally does not pose the same risks as other emojis, including the smiling face, the grinning face, the winking face, and the clapping hands. One commentator noted “that there is no consensus as to the meaning of each emoji.”5 That alone should counsel against the use of emojis in general.
Lightstone RE LLC v. Zinntex LLC6 dealt with the question of whether an emoji was a legally operative acceptance. Lightstone claimed that it paid Zinntex for protective masks that it didn’t receive. The parties exchanged text messages to resolve their dispute. On June 25, 2020, Zinntex agreed in a text to pay $1,475,000 by September 25, 2020, in four installments of $368,750 each.
But Zinntex also texted: “I can keep paying you with no written agreement.” An apparently astonished Lightstone responded: “You won’t sign an agreement is what your [sic] saying. So how I can [sic] make a deal this way?”
More texts followed. Lightstone wrote: “So are you agreeing to pay me over the next 3 months 1,475,000?” Zinntex responded: “I am not going to sign anything but I will have you paid out within 3 months.” Lightstone then sent a text reciting the dates that the four payments would be expected. Zinntex responded by texting a thumbs up emoji. That last text came just nine minutes after Zinntex told Lightstone that Zinntex would not sign anything.
Zinntex paid only $475,000, so Lightstone sued for the other $1 million, claiming that the thumbs up emoji constituted a signature of an executory accord that satisfied the statute of frauds. Lightstone moved for summary judgment, and Zinntex argued that the text messages were not legally binding.
Was the thumbs up emoji a legally operative acceptance? The court thought it was questionable whether texts and emojis can satisfy the statute of frauds, but “even if such an electronic signature in the form of an emoji can create a valid contract, there still must be a meeting of the minds and an intent to be so bound . . . ” Given the procedural posture of the case (a motion for summary judgment), there was a fact question as to whether Zinntex intended to be bound by the thumbs up emoji, especially given that it was texted just minutes after Zinntex had “categorically asserted he would not sign any document.” The court concluded that this issue was not appropriately resolved on a motion for summary judgment. (Alas, the issue won’t be resolved at a trial: the court held that “while the text messages may not have been sufficient to afford the plaintiff summary relief,” the parties otherwise agreed that Zinntex owed the money sought, so there is no necessity to resolve the fact issues about the texts.)
The Lightstone court’s holding seems correct: the mixed signals in Zinntex’s texts—in essence Zinntex said, “I’ll pay you, but I will not be bound by any such promise”—forecloses any conclusion, as a matter of law, that Zinntex manifested the unqualified assent necessary to form a contract.7 But the court was likely wrong about the statute of frauds, as explained below.
We can’t discuss contracting by emoji without a brief detour down the dark and twisted corridor of the statute of frauds (my apologies in advance). Certain contracts have to be in writing to satisfy the statute of frauds.8 If a contract falls into one of those categories, the text or email containing the emoji has to satisfy the statute’s requirements.
The statute of frauds raises some thorny issues when the writing (more accurately, the record) is a text or an email. It gets even thornier when the purported signature necessary to satisfy the statute of frauds is an emoji.
In the Lightstone v. Zinntex case discussed above, the court’s comment questioning whether texts and emojis can satisfy the statute of frauds misses the mark. It is widely accepted that “[t]ext messages and emails can potentially satisfy the Statute of Frauds, provided that they, like other writings, contain the essential terms of the transaction and are signed by the parties to be bound or their authorized agents.”9 Whether there is a sufficient signature in a text or email is often the principal issue in dispute.10
One of the authorities cited by the Lightstone court is internet law guru Professor Eric Goldman. But Professor Goldman does not agree with the court’s take on the statute of frauds: the court was “wrong about whether there is doubt that text messages and emojis can satisfy the statute of frauds,” said Goldman. “This is squarely governed by UETA/E-Sign, and the answer is they can.”11
Other commentators say that an emoji in a text can constitute a signature that satisfies the statute of frauds: “It seems clear that, under the right circumstances, an emoji could serve as an electronic signature or otherwise bind a party . . . The question is whether the parties intended the emoji to serve that purpose in this case.”12
If it is surprising that an emoji might be regarded as a signature, consider that the Supreme Court of Mississippi has held that even the automatic “Sent from my iPhone” line that attaches itself on emails sent from iPhones “may satisfy a trier of fact that the user had the requisite intent to adopt the closing as his or her signature for mobile emails.”13 Unlike the “Sent from my iPhone” line, an emoji does not appear automatically on emails or texts—it has to be added by an affirmative act of will. In this sense, the emoji has a greater claim to signature status than the “Sent from my iPhone” closing.
An unsigned email or text message in a chain of emails or texts can also satisfy the statute of frauds so long as the unsigned email or text is closely related to a signed email or text; the emails or texts in the chain all clearly refer to the same subject matter; and the sender intended to adopt the unsigned email or text by signing the other.14
All of that is a long way of saying that, depending on the circumstances, a text or email containing an emoji can satisfy the statute of frauds. Given the factual nature of any such determination, it is prudent not to assume that a texted or emailed emoji will—or will not—satisfy the statute of frauds.
Aside from the hurdle of the statute of frauds, there’s the pesky question of mutual assent (meeting of the minds). Can a thumbs up emoji constitute a legally operative acceptance that forms a contract? The answer is—why not? Emojis are not words, but that doesn’t matter. An acceptance need not be couched in words. A “proposal might be accepted with a nod of the head”15 or hand gestures at an auction. Here’s what we wrote in Corbin on Contracts:
There are different modes of expressing assent. Expression may be by the tongue, the eye, the hand, or by all of them at once. It may be by language, by words in any language, by words written or spoken. Yet there is also “sign language” which may consist of signs that are mere translations from a language of words, or of signs that convey ideas independently of any word language. A contract made by sign language is an express contract.16
Depending on the definiteness of the offer, the context, and all the surrounding circumstances, a texted or emailed thumbs up emoji ought to be regarded as a legally operative acceptance that forms a contract.17 But as shown by Lightstone v. Zinntex,18 discussed above, this might be a fact issue, and no one should assume that an emoji response to an offer is—or is not—an acceptance.
Cross-cultural differences might prevent one party from understanding the other when it comes to thumbs up emojis, a serious impediment to mutual assent. In some cultures, the thumbs up emoji does not manifest unqualified assent—some regard it as obscene or take it to signify not assent but the numeral one or five.19 “[I]n countries such as Italy, Greece, Iran and Afghanistan, people interpret it as a sign of disrespect.”20 And then there’s this: “Sending a thumbs-up can be seen as passive aggressive and even confrontational, according to Gen Z who claim they feel attacked whenever it is used.”21
If an offeree responds to an offer with an emoji but subjectively intends only to convey a friendly gesture short of an acceptance, that offeree nevertheless bears the risk of unintended contracting if the offeror reasonably interprets the emoji-response as an acceptance. In such case, a contract will be formed whether the offeree likes it or not.22
As one court put it: “So long as the offeror’s interpretation of the offeree’s equivocal acceptance is plausible or reasonable, New York courts will find a contract has been formed.”23
The offeree who uses emojis has what the Restatement (Second) of Contracts calls the “[r]esponsibility for unintended appearance of assent.”24 That is, if the offeree “has reason to know that [the offeree’s] conduct may cause the other party to understand that [the offeree] assents,” the offeree has negligently created “an appearance of assent.” The offeree is thus bound to a contract if the other party “also manifest[s] assent, but no further change of position on [that party’s] part is necessary to the formation of a bargain.”25
The possibility of unintended contracting is a sufficient reason to counsel against using emojis in contractual settings.
Use of an emoji may, in some circumstances, induce or contribute to inducing expectations and reliance. In Friel v. Dapper Labs, Inc.,26 plaintiffs sued Dapper Labs, promoters of non-fungible tokens (NFTs), for allegedly violating the securities laws by offering for sale to the public NFTs known as NBA Top Shot Moments without filing an SEC registration statement. The court refused to dismiss the action.
In order for plaintiffs to show that Top Shot Moments was an investment vehicle, they had to prove that “a person invests [their] money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.” The last point—the expectation of profits—is pertinent here. The court found that Dapper Labs’ public statements and marketing materials—including its tweets with emojis—objectively led purchasers to expect profits. The emojis included a rocket ship, a stock chart showing stocks on the rise, and a bag of money.
The court explained: “Each Tweet promotes a recent sale or statistics of recent sales of Moments on the Marketplace. And although the literal word ‘profit’ is not included in any of the Tweets, the ‘rocket ship’ emoji, ‘stock chart’ emoji, and ‘money bags’ emoji objectively mean one thing: a financial return on investment.”
Just as sign language, a nod of the head, and emojis may form a contract, emojis may also induce reliance that is actionable. Under the right facts, an emoji can be the basis for a recovery on a claim of promissory estoppel.
In days long gone, the formation of important contracts often was a ritualized affair, replete with an elaborate signing ceremony and formal seal, which was “originally a stamp of hot wax or something similar to authenticate a document and serve as evidence of the deliberation behind and solemnity of a legal undertaking.”27
Today, though many contracts still are entered into with old fashioned paper and ink, for most contracts, paper and ink are unnecessary. Modern contracts are often of the browsewrap or clickwrap variety, or they are stored in the cloud, instantaneously accessed online, and executed by parties who have never met and who might be on opposite sides of the globe. For most contracts, there is no signing ceremony, no ritual handshake, and certainly no hot wax or seal.
It is a sobering thought that multi-million-dollar contracts can now be made and modified by whipping out a cellphone and texting a thumbs up emoji, a process that might take a few seconds at most and requires no deliberation, much less an opportunity for legal counsel to review the new deal. For all the wonders of the modern age of texting—speed and convenience—this one is fraught with peril.
It is one thing when the owner of the company does this sort of thing, but it may be quite another when it’s the proverbial loose cannon who seems to roam the halls of every company in America. (We all know the type: this person is a self-identified contract expert who makes sure to tell the company’s legal counsel that whatever the expert does “has never been a problem—so stop overreacting!”)
Is there a way to protect the client from impulsive thumbs up contracting? Education is critical—the client needs to understand that texts, emails, and tweets can have contractual significance. The client should never assume that the informality of these forms of communication immunize them from being contracts.
To prevent hasty modifications of existing contracts, consider adding a provision to the original contract stating that certain specified classes of agents (including the loose cannon) shall have no power to modify the contract or to waive the performance of conditions—that such power is confined to only certain persons. Such a clause ought to be effective to this extent: it would provide unequivocal notice that the loose cannon and others had no such power when the contract was made. Therefore, a party who claims that the loose cannon later modified the contract must show that such person somehow acquired that power after the contract was made—an extra hurdle that will be difficult to prove.28
This suggestion is not a silver bullet or ironclad, it is just an added protection.
Timothy Murray, a partner in the Pittsburgh, PA law firm Murray, Hogue & Lannis, is the lead author of the Corbin family of contract law texts. He writes the biannual supplements to Corbin on Contracts; is author of Corbin on Contracts, volumes 1, 8 and 15; Corbin on Pennsylvania Contracts; Corbin on Ohio Contracts; Corbin on Massachusetts Contracts; Corbin on New York Contracts; Corbin on Illinois Contracts; Corbin on Contracts: Force Majeure and Impossibility of Performance Resulting from COVID-19 (2021); and is co-author of Corbin on Contracts Desk Edition (2021) and Corbin on Contract Drafting.
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Related Analytical/Secondary Content by Timothy Murray, Murray, Hogue & Lannis:
For the authoritative, exhaustive, and influential contract law treatise relied on by lawyers and cited in countless court decisions, see Corbin on Contracts
For a single-volume compendium of contract law, giving effective, efficient, accurate, and current analysis, see Corbin on Contracts Desk Edition
For an analysis of the law regarding force majeure and impossibility of contract performance with regard to the COVID-19 pandemic, see Corbin on Contracts: Force Majeure and Impossibility of Performance Resulting from COVID-19
For a review of the daunting complexities of contract law and a guide to avoiding common contract drafting mistakes, see Corbin on Contract Drafting
For a complete picture of contract law with citations to and discussion of pertinent statutory law and judicial opinions in specific jurisdictions, see Corbin on Illinois Contracts, Corbin on Massachusetts Contracts, Corbin on New York Contracts, Corbin on Ohio Contracts, and Corbin on Pennsylvania Contracts.
For practical guidance for counsel in drafting and interpreting standard contractual and boilerplate clauses in commercial contracts, see
> GENERAL COMMERCIAL CONTRACT CLAUSE RESOURCE KIT
> ENFORCEABLE CONTRACT SIGNATURE REQUIREMENTS
For an overview of general contract law rules, see> RULES, RULES, RULES . . . CONTRACT LAW IS AWASH IN RULES (THAT TOO MANY ATTORNEYS DON’T KNOW)
For practical advice on overseeing a contract management process, see
> CONTRACT MANAGEMENT PROCESS CHECKLIST
For an analysis of the legal issues arising from the use of electronic technology to form contracts, see
> ELECTRONIC CONTRACTS
For a checklist outlining what counsel should consider when drafting or reviewing a commercial contract, see
> COMMERCIAL CONTRACT DRAFTING AND REVIEW CHECKLIST
For an explanation of whether a preliminary agreement will be interpreted as a binding contract, see
> PRELIMINARY AGREEMENTS
> AVOIDING ACCIDENTAL CONTRACTING
1. Leslie Y. Garfield Tenzer & Ashley Cangro, An Emoji Legal Dictionary, 83 U. Pitt. L. Rev. Online 1 (2022). 2. Tim Cummins, Commitment Matters, Contracting with Emojis, (Aug. 29, 2017). 3. See the Unicode Full Emoji List, v15.0. 4. Dictionary.com, Emoji Dictionary. See also Emojipedia (defining the thumbs up emoji as “A thumbs-up gesture indicating approval”). 5. Moshe Berliner, When a Picture Is Not Worth a Thousand Words: Why Emojis Should Not Satisfy the Statute of Frauds’ Writing Requirement, 41 Cardozo L. Rev. 2161, 2172 (2020). 6. Lightstone RE LLC v. Zinntex LLC, 2022 N.Y. Slip Op 32931(U) (Kings Cty. 2022). 7. See Timothy Murray, Corbin on Contracts § 3.30. 8. E.g., see Henry F. Luepke, III, Promissory Estoppel and the Statute of Frauds in Missouri, 58 J. Mo. B. 132, 133 (May/June 2002): Substantially tracking section 4 of the English version, Missouri’s Statute of Frauds prohibits enforcement of five categories of oral contracts: 1) contracts of executors or administrators (i.e., personal representatives under the Probate Code); 2) contracts to answer for the debt, default, or miscarriage of another; 3) contracts in consideration of marriage; 4) contracts for the sale of real property or an interest in real property; and 5) contracts not to be performed within one year from the making thereof. Like section 17 of the English statute, Missouri law includes, under the Uniform Commercial Code, a sixth category: 6) contracts for the sale of goods valued at $ 500 or more. 9. Donius v. Milligan, 24 LCR 440, 442 (Mass. Land Ct. 2015). See Massachusetts v. Greg Cohen Promotions, LLC, 2023 U.S. Dist. LEXIS 33525 (S.D. N.Y. Feb. 28, 2023); Han v. Chen, 2022 NY Slip Op 31501(U) (N.Y. Cty. 2022). 10. Restatement (Second) of Contracts § 134: “The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.” See Brewfab, LLC v. 3 Delta, Inc., 2022 U.S. App. LEXIS 28429 (11th Cir. Oct. 13, 2022). 11. Eric Goldman, Technology & Marketing Law Blog, A Million-Dollar Thumbs-Up Emoji?–Lightstone v. Zinntex, (Oct. 14, 2022). See John E. Murray, Jr. & Timothy Murray, Corbin on Contracts Desk Edition, § 23.03: “[U]nder UETA, ‘electronic signature’ ‘means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.’” In addition, “[u]nder U.C.C. § 1-201(b)(37) ‘signed’ ‘includes using any symbol executed or adopted with present intention to adopt or accept a writing.’” 12. Stephen M. Kramarsky and John Millson, New York Law Journal, Thumbs Up or Thumbs Down: New York Court Analyzes Meaning and Impact of Emoji in Contract Negotiations (Nov. 14, 2022). 13. Parish Transp. LLC v. Jordan Carriers Inc., 327 So. 3d 45, 54-55 (Miss. 2021). 14. Parish Transp., 327 So. 3d 45. See also Han, 2022 NY Slip Op 31501(U), 9 (“[A]lthough signed and unsigned writings may be read together for purposes of the statute of frauds, . . . they must clearly refer to the same subject matter or transaction, contain all of the essential terms of a binding contract, and the unsigned writing must be prepared by the party to be charged . . . ”); Calderwood v. Rinsch, 2022 U.S. Dist. LEXIS 213305 (E.D. Pa. Nov. 28, 2022) (if there is a signed text in a chain of unsigned texts, the unsigned texts may satisfy the statute of frauds if the texts “expressly reference each other.”). 15. Andra v. Lena P. Peebler Revocable Tr., 286 P.3d 576 (Kan. App. 2012). 16. Timothy Murray, Corbin on Contracts § 1.19. 17. See, e.g., Menscher, Keith, “Thank you, I Emoji Your Offer: Emojis Translating Acceptance in Contracts” (2021). Student Works. 1265, at 16. 18. Lightstone, 2022 NY Slip Op 32931(U). 19. Moshe Berliner, supra n. 5, 41 Cardozo L. Rev. 2161, 2164, n.21. 20. Menscher, Keith, supra n. 17, Student Works. 1265, at 23. 21. Belinda Cleary, Daily Mail.com, Why NOBODY should be using the ‘thumbs up’ emoji in 2022 - and the 10 symbols only ‘old people’ use that have Gen Z rolling their eyes (Oct. 12, 2022). 22. IBM Corp. v. Johnson, 629 F. Supp. 2d 321 (S.D.N.Y. 2009); Trademark Props., Inc. v. A&E TV Networks, 422 Fed. Appx. 199 (4th Cir. 2011). 23. A&E TV Networks, 422 Fed. Appx. 199, 205. 24. Restatement (Second) of Contracts § 19, cmt. C.