Decisao Judicial Saskatchewan - Validade do Emoji de Joinha em Contrato de Venda de Linho

KINGS BENCH FOR SASKATCHEWAN Citation 2023 SKKB 116 Date 2023 06 08 Docket QBGSC000462022 Judicial Centre Swift Current BETWEEN SOUTH WEST TERMINAL LTD PLAINTIFF and ACHTER LAND CATTLE LTD DEFENDANT Counsel Michael Marschal for the plaintiff JeanPierre Jordaan for the defendant JUDGMENT KEENE J June 8 2023 I INTRODUCTION 1 This is a summary judgment application brought by the plaintiff South West Terminal Ltd SWT under Rule 72 of The Queens Bench Rules for judgment against the defendant Achter Land Cattle Ltd Achter SWT claims the parties entered into a deferred delivery purchase contract flax contract on March 26 2021 in which SWT agreed to buy and Achter agreed to deliver 87 metric tonnes of flax for a contracted price of 66926 per tonne with delivery between November 1 2021 and November 30 2021 Achter did not deliver any flax The plaintiff sues for breach of contract and damages of 8220021 plus interest and costs The defendant denies entering into the contract and in the alternative or in addition relies on the statutory defence found in s 61 of The Sale of Goods Act RSS 1978 c S1 SGA contending any contract is unenforceable because there was no note or memorandum of the contract 2023 SKKB 116 CanLII 2 made or signed by the parties 2 For the most part this application involves the law of contract and the application of the SGA and the core facts are not necessarily in dispute What sets this case apart is the use of a thumbs up emoji and what that meant in the context of the specific facts of this law suit II NOTICE OF OBJECTION 3 The plaintiff filed an affidavit sworn by Justin Isherwood on December 20 2022 in support of SWTs application for summary judgment The defendant has brought an application to strike the entirety of para 4 of Mr Isherwoods affidavit I reproduce para 4 as follows 4 Act of god sic clauses in grain contracts are rare across the industry as they effectively shift all of the risk of the contract onto the buyer Typically the contracts entered into in the grain industry are deferred delivery contracts not production contracts In a deferred delivery contract the buyer contracts to purchase a specific volume of grain at a specific price from the seller at a fixed time in the future In such contracts the buyer is not buying a specific crop they are only purchasing a specific quantity of grain at a fixed price from the seller at a specific time In contrast production contracts are where the buyer is buying a particular crop to be grown These production contract sic also entitle the buyer rights to additional tonnage grown in a particular year on the specified acres Production contracts do typically contain an act of god sic clause and as such are rare in the industry 4 The defendants grounds are set out in the striking application which are reproduced as follows 4 Rule 1330 states that an affidavit filed in support of a motion for final relief must be confined to facts that are within the personal knowledge of the person swearing or affirming the affidavit 5 Rule 13303 required that an affiant swearing an affidavit on information and belief disclose the source of the information andor 2023 SKKB 116 CanLII 3 belief in the affidavit The Affidavit contains statements opinions or conclusions based solely on information and belief without adequately disclosing the source of the information andor belief 6 The Affidavit contains multiple statements opining as to legal opinion andor expert opinion 7 Statements made in an affidavit based solely on irrelevant or unreliable evidence are inadmissible The Affidavit contains several inadmissible statements that are irrelevant or unreliable relating to Act of God clauses 8 Statements made in an affidavit that are based solely on speculation hearsay argument or opinion evidence are inadmissible The Affidavit contains several inadmissible statements of argument opinion hearsay or speculation relating to Act of God clauses and grain contracts 9 Rule 13304 states that the costs of every affidavit that unnecessarily sets forth matters of hearsay or argument or copies of or extracts from documents must be paid by the party filing the affidavit 10 Rule 79 states that this Honourable Court may strike out all or a portion of a pleading or other document where that document is a scandalous frivolous or vexatious b immaterial redundant or unnecessarily lengthy c may prejudice or delay the fair trial or hearing of a proceeding or d is otherwise an abuse of process of the Court 11 The Affidavit contains statements that are opinion speculation argument andor unsubstantiated belief in the guise of factual evidence 5 In addition during oral argument Achters lawyer contended that the first sentence acts of god clauses in contracts are rare across the industry as they effectively shift all of the risk of the contract onto the buyer is factually incorrect because the often used SWT deferred delivery purchase contract has as part of its 2023 SKKB 116 CanLII 4 General Terms and Conditions a sort of act of God clause in clause 8 reproduced as follows 8 SWT Delay If SWT is unable to receive the grain in SWTs elevator within the delivery period for circumstances beyond its control SWT may upon notice to the Producer extend the final day of the delivery period or terminate this Contract Such circumstances include without limitation fires strikes floods acts of God lawful acts of public authorities or delays or defaults caused by common carriers Isherwood affidavit sworn October 28 2022 Exhibit B page 0049 Joint Book of Documents 6 The defendant argues that Mr Isherwood should not be allowed to give what amounts to broad ranging expert opinion on grain contracts in the industry without being qualified as an expert or providing a proper factual or academic basis for his opinion 7 The plaintiff responds to this concern as follows 24 This evidence cannot be considered in isolation This evidence was adduced in response to the affidavit of Chris In Chriss affidavit he claims that he believed that the flax contract discussed on the phone was going to be a production contract with an Act of God clause Chris used the term production contract and SWT was replying to that evidence providing proper context in response Footnote omitted Plaintiffs brief dated April 3 2023 8 I agree with SWT The plaintiff is entitled to respond to evidence raised by the defendant 9 In addition the plaintiff set out in its response to the striking application the following 2023 SKKB 116 CanLII 5 31 In contrast with an independent expert witness the Courts also recognize witnesses who have expertise and who are actually involved in the events underlying the litigation Kon Construction Ltd v Terranova Developments Ltd 2015 ABCA 249 at par sic 35 sited with approval in Yashcheshen v Teva Canada Ltd 2022 SKCA 49 at para 80 These are litigants including the officers and employees of corporate litigants who have expertise and who were actually involved in the events underlying the litigation Kon Construction at para 35 These types of witnesses were involved in the underlying events but are unable to adequately explain why they did what they did without engaging with their expertise Kon Construction at para 3543 32 In this case the contract actually discussed on the phone was a deferred delivery contract Chris confirmed on crossexamination that his expectation that the contract would be a production contract was just something he expected in his mind and he never mention it to Kent on the phone SWT employees have to be able to explain the general context in which they are operating in in order to explain why their employees sent Chris a contract that said Deferred Deliver in bold letters at the top and why there would obviously not be an act of God clause benefiting the farmer in the contract They cannot do that without engaging with their personal knowledge and experience in the industry Mr Isherwood obviously could not interpret the flax contract itself under the guise of evidence see eg Ps International Canada Corp v Palimar Farms Inc 2016 SKQB 232 at paras 3940 but he can provide evidence as to the general market and context that SWT is operating in that is all paragraph 4 of the3 Reply Isherwood Affidavit is doing 33 As stated by the Alberta Court of Appeal in Kon Construction at para 40 It is generally not necessary to quality litigant experts as experts under the Mohan procedure As parties to the litigation they are entitled to testify and generally they will have the most direct and relevant evidence about the issues The truth finding function of a trial requires that their evidence be received Since they were often only involved in the underlying events because of their expertise it makes no sense to hold that they cannot explain why they acted as they did if they stray into their expertise Their opinions explain why they acted as they did 34 Paragraph 4 of the Reply Isherwood Affidavit is explaining the general context in which SWT was operating in when the flax contract was entered into His evidence is explaining based on his 2023 SKKB 116 CanLII 6 personal knowledge and experience in the industry that there are thee two types of contracts terms used by witnesses for both Achter and SWT this is what those contracts typically provide for and one is way more common in the industry than the other This is not an opinion this is just the reality Mr Isherwood then provides context for the statement in the following paragraph stating For context SWT entered into 1187 deferred delivery contracts between Sept 16 2021 and Dec 14 2022 whereas it only entered into 10 production contracts over that same time 35 The application to strike is misconceived It does not make sense for the Courts to emphasize the importance of the factual matrix particularly the market in which the parties are operating but then not allow evidence on that factual matrix and circumstances the parties are operating in Further this type of evidence is commonly accepted by the Courts 36 For a case on virtually identical circumstances in JGL Commodities Ltd v Puddell Farms Ltd 2018 SKQB 345 at para 6 Puddell Farms there was evidence from William Shaw Jameson the CEO of one of the parties a grain trading company similar to SWT who provided evidence on deferred delivery contracts what they were and their commonality There was also evidence from the farmer on production contracts what they are and what they generally contain Puddell Farms at para 10 The Court also accepted evidence from the grain traders employee about how the contract in issue was typical of the type of contracts used in the industry Puddell Farms at para 12 Justice Tholl as he then was not only accepted this evidence but he relied on this evidence in rendering his decision on frustration Puddell Farms at para 58 Footnotes omitted Plaintiffs brief dated April 3 2023 10 I agree with the above Mr Isherwood is entitled as a litigation expert to provide the type of evidence he deposed to in the impugned para 4 of his affidavit and such evidence as stated in the above plaintiffs brief has been allowed by the courts 11 Additionally it is important to read paras 5 6 and 7 of Mr Isherwoods December 20 2022 affidavit For brevity I will not reproduce those paragraphs but when these paragraphs are read in conjunction with para 4 a factual basis is provided 2023 SKKB 116 CanLII 7 for the more generalized statement found in para 4 12 Counsel for the defendant may be correct in saying Mr Isherwood did not mention the often used deferred delivery purchase contracts which do contain a buyer friendly act of God clause in the two first sentences However when looked at in context it appears Mr Isherwood was directing his attention more to Chris Achters Chris evidence about production contracts 13 I also note that this whole business of the difference between deferred delivery purchase contracts and production contracts and the relative rarity of production contracts and whether or not Mr Isherwood overstepped his evidentiary competence in para 4 is basically moot because it is evident as I will discuss below Chris seemed to be aware of the difference of the two types of grain contracts in any event It appears that the point that Mr Isherwood wished to convey is that a production contract is relatively uncommon and contains significantly differently information than a deferred delivery production contract 14 Therefore I have decided to dismiss the defendants application to strike para 4 of Mr Isherwoods December 20 2022 affidavit I note the defendant withdrew part of its striking application para 9 of the Kent Mickleborough affidavit sworn September 14 2022 but did so only after the plaintiff was put to the effort of including that issue in a written brief The plaintiff should receive costs from the defendant for the striking application I order that Achter shall pay to SWT costs for the dismissed application to strike fixed at 40000 III FACTS 15 The parties have filed an agreed statement of facts which I reproduce 2023 SKKB 116 CanLII 8 AGREED STATEMENT OF FACTS The following facts are agreed to for the purposed sic of addressing South West Terminal Ltds application for summary judgment 1 South West Terminal Ltd SWT is a grain and crop inputs company incorporated under The Business Corporations Act RSS 1978 C B10 the BCA with their registered office in Gull Lake Saskatchewan 2 Achter Land Cattle Ltd Achter is a corporation incorporated under the BCA with their registered office in Swift Current Saskatchewan Achter is a farming corporation owned and operated by Chris Achter Chris Achter is a proper representative of Achter Chris Achters father is Bob Achter Chris Achters cell phone number is 3062647664 3 Kent Mickleborough is a Farm Marketing Representative with SWT primarily acting as a grain buyer for SWT 4 SWT has purchased grain from Achter through various deferred grain contracts since approximately 2012 5 On March 26 2021 at 101PM Mr Mickleborough texted the following text message to producers including Bob Achter and Chris Achter All Divisions Kent Mickleborough Flax Prices Flax 1Canmax 6 dockage 2250bu Apr 1700 OctNovDec del 6 Following Mr Mickleborough sending this text message he received a call from Bob Achter After speaking with Bob Achter Mr Mickleborough called Chris Achter Following the phone call with Chris Achter Mr Mickleborough had a contract drafted for Achter to sell SWT 86 metric tonnes of flax to SWT at a price of 1700 per bushel which amounts to 66926 per tonne with a delivery period listed as Nov Mr Mickleborough applied his ink signature to the contract then took a photo of the contract using his cell phone Mr Mickleborough then texted the photo of the contract to Chris Achter at 3062647664 along with the text message Please confirm flax contract Chris Achter texted back from 3062647664 a thumbsup emoji 7 Achter did not deliver 87 metric tonnes of flax to SWT in November 2021 2023 SKKB 116 CanLII 9 8 The spot price that flax was trading at on November 30 2021 was 4100 per bushel which amounts to 161409 per tonne IV ISSUES 16 The plaintiff has conveniently set out the issues which I will use to a degree a Should this court grant summary judgment i Can disputes in the evidence be justly and proportionately resolved through the summary judgment process ii Are there any genuine issues for trial b Was a valid contract formed between SWT and Achter to deliver 87 tonnes of flax in November 2021 for a price of 66921 per tonne i Was there a consensus ad idem ii Was there certainty of terms c Were the requirements of s 6 of the SGA met d What is the appropriate measure of damages V DECISION a Should this Court grant summary judgment 17 The parties are in agreement that this case is tailormade for the summary judgment procedure set out under Rules 72 and 75 I agree This application will 2023 SKKB 116 CanLII 10 permit the court to make a fair and just determination by making efficient use of the court resources while at the same time save the parties significant time and expense I am of the view I can resolve disputes in the evidence through the summary judgment process As I will develop below I find there are no genuine issues in this case requiring a trial I will now move on to the contested issues b Contract Formation i Consensus Ad Idem 18 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 Whether this has happened is to be viewed in accordance with an objective theory of contract formation The court is to look at how each partys conduct would appear to a reasonable person in the position of the other party Aga at para 35 The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world in the form of the objective reasonable bystander their intention to contract and the terms of such contract Aga at para 36 The question is not what the parties subjectively had in mind but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound Aga at para 37 The courts when considering this question are not restricted to the four corners of the purported agreement but can consider the surrounding circumstances Aga at para 37 The nature and relationship of the parties and the interests at stake help inform the question of an intention to create a legal contractual relationship Aga at para 38 2023 SKKB 116 CanLII 11 19 Chris who is the acting mind of the defendant Achter had a long standing business relationship with SWT going back to at least 2015 when Kent Mickleborough Kent started with SWT as a grain buyer Kent Mickleborough affidavit sworn September 14 2022 at para 2 Since the business relationship between Kent as a grain buyer for SWT and Chris as principal for Achter is important I will sacrifice brevity and reproduce from Kents September 14 2022 affidavit the following 3 I would primarily deal with Chris when negotiating contracts with Achter Ltd We would typically have a conversation either in person or over the telephone agree on a price and volume of grain then Chris would ask me to write up the contract and send it out to him I have done approximately fifteen to twenty contracts with Achter Ltd during my time with SWT Based on my longstanding relationship with Achter Ltd Chris had provided me with his cell phone number which is 3062647664 Based on my prior experience with Chris I know that contacting this number with connect me with Chris 4 After the commencement of the Covid19 pandemic in approximately March of 2020 the sales team with SWT stopped going out and meeting with producers in person including Achter Ltd Instead we would typically do contracts through email or text message However even prior to the pandemic I had done contracts with producers by email and text message Prior to the contract in issue in the within proceeding I had completed four contracts with Achter Ltd by having Chris execute the contract by text message from 306 2647664 5 For instance on July 14 2020 after discussing and agreeing on a contract with Chris Achter I prepared a contract for the sale of 185 metric tons sic of durum wheat from Achter Ltd to SWT for a price of 31231 per ton sic I signed the contract and then took a photo of it using my cell phone and sent it to Chris at 3062647664 I messaged Please confirm terms of durum contract Chris texted me back Looks good At the time I understood this to be that Chris was agreeing to the contract and this was his way of signally sic that agreement Achter Ltd delivered on this contract without issue A copy of the contract and text message is attached as Exhibit B 6 On September 11 2020 after discussing and agreeing on a contract with Chris Acter sic I prepared a contract for the sale of 131 metric tons sic of durum wheat from Achter Ltd to SWT for a price 2023 SKKB 116 CanLII 12 of 28477 per ton sic I signed the contract and then took a photo of it using my cell phone and sent it to Chris at 3062647664 I messaged Please confirm terms of durum contract Chris texted me back Ok At that time I understood this to be that Chris was agreeing to the contract and this was his way of signally sic that agreement Achter Ltd delivered on this contract without issue A copy of the contract and the text messages is attached as Exhibit C 7 On October 21 2020 after discussing and agreeing on a contract with Chris Acter sic I prepared a contract for the sale of 395 metric tons sic of durum wheat from Achter Ltd to SWT for a price of 30865 per ton sic I signed the contract and then took a photo of it using my cell phone and sent it to Chris at 3062647664 I messaged Please confirm terms of durum contract Chris texted me back Yup At that time I understood this to be that Chris was agreeing to the contract and this was his way of signally sic that agreement Achter Ltd delivered on this contract without issue A copy of the contract and the text messages is attached as Exhibit D Emphasis in original 20 I find the above is not in contest 21 So in short what we have is an uncontested pattern of entering into what both parties knew and accepted to be valid and binding deferred delivery purchase contracts on a number of occasions It is important to note that each time Kent added to the offered contract Please confirm terms of durum contract and Chris did so by succinctly texting looks good ok or yup The parties clearly understood these curt words were meant to be confirmation of the contract and not a mere acknowledgement of the receipt of the contract by Chris There can be no other logical or creditable explanation because the proof is in the pudding Chris delivered the grain as contracted and got paid There was no evidence he was merely confirming the receipt of a contract and was left just wondering about a contract 22 I will leap frog over the controversial March 26 2021 flax contract evidence found in the Mickleborough affidavit for the purposes of revealing further 2023 SKKB 116 CanLII 13 uncontradicted proof of the manner in which the parties conducted their business by adding from Kents affidavit 12 On June 10 2021 after discussing and agreeing on a contract with Chris Acter sic I prepared a contract for the sale of 336 metric tons sic of durum wheat from Achter Ltd to SWT for a price of 34907 per ton sic The delivery period was July 1 2021 to August 15 2021 so Achter Ltd was required to deliver the wheat by August 15 2021 I signed the contract and then took a photo of it using my cell phone and sent it to Chris at 3062647664 I messaged Please confirm terms of durum contract Chris texted me back Ok At that time I understood this to be that Chris was agreeing to the contract and this was his way of signally sic that agreement Achter Ltd delivered on this contract in July 2021 and August 2021 without issue A copy of the contract and the text messages is attached as Exhibit F Of note the market price of wheat had slightly risen at the end of June 2021 and early July 2021 from when the contract was entered into on June 10 2021 As a result Achter Ltd could have made slightly more money by delivering the wheat to another purchaser Emphasis in original 23 I now with that as background return to the controversial March 26 2021 flax contract and the discussions and actions arising between Kent and Chris I reproduce from Kents September 14 2022 affidavit the following 8 On March 26 2021 at 1301 I sent out a text blast to all of my clients with SWT advertising a price for flax that SWT was prepared to enter into contracts for I advertised that SWT would pay 17 per bushel for flax with a minimum of 6 dockage and with a delivery period between September and November 2021 Dockage refers to any material intermixed with a parcel of grain a high dockage percentage would be a lower quality of grain This text message was sent to both Chris at 3062647664 and Bob 9 Shortly following my text blast I received a call from Bob Bob told me that he had seen my text regarding the current price of flax and wanted to enter a contract for Achter Ltds new crop of flax at 17 per bushel I asked if Bob had talked with Chris about the potential contract and Bob said he had I chatted with Bob some more and at the end of the conversation told Bob that I would give Chris a call on his cell and get the contract in place with Chris 2023 SKKB 116 CanLII 14 10 I then called Chris about the potential flax contract I said I assume you talked to Bob about this and Chris confirmed that he had spoken to Bob and wanted to enter into a flax contract for 87 metric tons sic of flax at 1700 a bushel which works our to 66926 per ton sic The delivery period was going to be November 2021 I told Chris that I would write up the contract and send it to him by text message and ask him to confirm he contract via text when it came through which Chris agreed to do 11 I then wrote up the contract for a purchase of 87 metric tons sic of flax for 66926 per ton sic with a delivery period in November 2021 the Flax Contract I then signed the contract took a photo of it and texted it to Chris at 3062647664 I messaged Please confirm flax contract Chris tested back a thumbs up emoji At the time I understood this to be that Chris was agreeing to the contract and this was his way of signally sic that agreement A copy of the contract and the text message is attached as Exhibit E Emphasis in original 24 I find this to be very similar to the durum contracts referred to above including Kents use of the phrase Please confirm flax contract the only difference being the use of the word flax instead of the word durum and this time instead of words like ok yup or looks good being texted by Chris a commonly used emoji was texted by Chris 25 Chriss version of the March 26 2021 flax contract episode is set out in his affidavit as follows 4 I have been selling grain to the Plaintiff for several years Most of the contracts I entered into with the Plaintiff were to sell grain that I had already harvested and would be ready for delivery shortly In other words we would agree to the sale of grain and delivery would be completed within the next few weeks 5 With contracts where grain is on hand I do not insist on an Act of God clause because the grain is already grown and I am reasonably certain I would be able to deliver I also do not insist on written agreements as all I need to know is the volume and the price that the Plaintiff is offering Once the volume and price are confirmed I will make arrangements for delivery within the next few weeks Of 2023 SKKB 116 CanLII 15 all the contracts attached to the affidavit only Exhibit D the Flax Contract was not for grain on hand 6 Whenever I enter a contract where the grain still needs to be produced I insist on an Act of God clause The reason is that I do not want to be bound to deliver grain that I cannot produce due to circumstances outside my control 7 In response to paragraphs 10 and 11 of the affidavit we did not discuss the particulars of the Flax Contract during that call That time of year is a very busy time for me as I am calving about 400 cows during March and the beginning of April I expected that the contract would be a production contract with an Act of God clause which protects me if the crop gets hailed out or gets damaged by drought Affidavit of Chris Achter sworn November 16 2022 26 It is important to note that Chris acknowledges that he did not tell Kent anything about production contracts see para 7 from his above affidavit see also transcript of crossexamination of Chris T52 27 In terms of the emoji and what this electronic picture meant Chris deposes 8 I confirm that the thumbsup emoji simply confirmed that I received the Flax contract It was not a confirmation that I agreed with the terms of the Flax Contract 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 Attached as Exhibit A is one example of many jokes that Mr Mikleborough sic would send me I deny that he accepted the thumbsup emoji as a digital signature of the incomplete contract I did not have time to review the Flax Contract and merely wanted to indicate that I did receive his text message 9 I did not and would not have entered into the Flax Contract without first reviewing the terms and conditions with specific reference to the Act of God clause 28 Chris was crossexamined on the use of the emoji I reproduce from 2023 SKKB 116 CanLII 16 the crossexamination transcript the following Q Okay So lets talk about the thumbs up emoji because you responded with a thumbs up emoji right A Yes Q Yeah What kind of phone do you have A An iPhone Q Good Good Thats the best kind of phone So when youre on your I have an iPhone as well So when youre on your phone texting you you basically open the text messaging application and then theres a keyboard and then theres a button that opens another keyboard with a bunch of emojis on them right A Yes Q Yeah And like theres a smiley face emoji which would generally indicate like Im happy correct A Yes Theres lots of different emojis yeah Q Yeah And the emojis indicate specific things right Like the happy the smiley face emoji would would generally indicate I am happy correct A Yes It usually pops up the the ones you use the most the emojis are the first ones that pop up Theres usually two or three that you use regularly that will pop up Q Yeah And the emojis are used to express things in digital communications right Like theyre theyre used to express specific sort of meaning correct A Yes Q Yeah Have you ever Googled the meaning of the thumbs up emoji Mr Achter A No I havent Q Okay fair Im going to share my screen with you Here just wait Here Im going to share my screen with you okay So I have Google open here and then Im going to type in thumbs up emoji 2023 SKKB 116 CanLII 17 meaning into the search bar and what pops up is it says I approve Would you agree with that that interpretation of the thumbs up emoji Would you agree that thats what the thumbs up emoji means MR JORDAAN Objection My client is not an expert in emojis MR MARSCHAL Okay Q MR MARSCHAL But he does send emojis correct A Yes Q Yeah okay Okay And at paragraph 8 of your Affidavit you say you deny that Kent accepted the thumbs up emoji as a digital signature of the incomplete contract But you would agree with me Mr Achter that you dont know what Kent thought right Like you dont know whats in his mind right Transcript pages 5557 29 It would have been preferrable if the questioner had been more direct in his questioning and asked what Chris understood a emoji meant as opposed to the more general question that was objected to by Chriss counsel However it is not what Chris may or may not think a emoji means It is what the informed objective bystander would understand 30 It appears that Chris does not accept SWTs contention that a emoji means something to the effect I agree or I accept or some sort of positive affirmation Instead it appears he takes the position that he is generally unaware of what a emoji means and in particular what he meant to convey to Kent on March 26 2021 This has led the parties to a far flung search for the equivalent of the Rosetta Stone in cases from Israel New York State and some tribunals in Canada etc to unearth what a emoji means These cases to the small degree they are helpful are all distinguishable on their facts and context I prefer a simpler approach 2023 SKKB 116 CanLII 18 31 A starting point is that the emoji has arrived in the world of dictionary meaning it is used to express assent approval or encouragement in digital communications especially in western cultures Dictionarycom online httpswwwdictionarycomeemojithumbsupemoji 17 May 2023 I am not sure how authoritative that is but this seems to comport with my understanding from my everyday use even as a late comer to the world of technology However rather than simply relying on judicial notice I will also look at what Chris deposed in his affidavit For convenience I repeat his para 8 here 8 I confirm that the thumbsup emoji simply confirmed that I received the Flax contract It was not a confirmation that I agreed with the terms of the Flax Contract 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 Attached as Exhibit A is one example of many jokes that Mr Mikleborough sic would send me I deny that he accepted the thumbsup emoji as a digital signature of the incomplete contract I did not have time to review the Flax Contract and merely wanted to indicate that I did receive his text message 32 In my opinion this paragraph appears to be carefully crafted to state that there was a confirmation of the receipt of the contract seemingly denoting a form of acknowledgement which I took to mean that Chris understood a emoji means ok or something affirmative This ends up being a bit of a cake and eat it too situation Chris wants the court to accept the emoji meant only he got the contract but not that he approved the contract This is of course somewhat selfserving 33 It is interesting to note that Chris from that point on never contacted Kent or anyone at SWT to discuss the flax contract further except for a brief discussion about a possible crop failure in September 2021 Chris would have the court believe that during the crop growing season he believed there was no flax contract with SWT 2023 SKKB 116 CanLII 19 34 The facts seem to be somewhat different Chris responded to the offer to contract Kent called him because through Bob Achter Chriss father Chris had expressed interest in a flax contract There would be no other purpose for Kents telephone call on March 26 2021 to Chris During that call Kent and Chris talked about the flax contract and just like in previous occasions with the durum contracts a deal appears to have been at least verbally struck This was followed up by Kent sending a screenshot of the clearly titled Deferred Delivery Production contract indicating the product flax price and the parties just as they had done on numerous occasions before without any issues Kent added Please confirm flax contract just as he had done in the past with the exception of the word flax instead of durum was used Chris responded from his cell phone with a emoji 35 I prefer Kents evidence that the above had been discussed The court does not accept Chriss version para 8 of Chriss affidavit because the circumstances leading up to the conversation multiple previous contract negotiations resulting in contracts support Kents recollection indeed Kent ultimately sent the texted contract offer shortly after the gentlemen ended their telephone call Even though this is a summary judgment application I am satisfied that I can resolve this evidentiary dispute on the affidavit evidence without the necessity of a trial 36 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 In my opinion when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item a meeting of the minds just like they had done on numerous other occasions 2023 SKKB 116 CanLII 20 37 Additionally I find under these circumstances a emoji is an action in electronic form that can be used to allow to express acceptance as contemplated under The Electronic Information and Documents Act 2000 SS 2000 c E722 EIDA as per s 18 181 Unless the parties agree otherwise an offer or the acceptance of an offer or any other matter that is material to the formation or operation of a contract may be expressed a by means of information or a document in an electronic form or b by an action in an electronic form including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer acceptance or other matter 2 A contract shall not be denied legal effect or enforceability solely by reason that information or a document in an electronic form was used in its formation 38 I note Justice Scherman in Quilichini v Wilsons Greenhouse 2017 SKQB 10 2017 8 WWR 375 Quilichini interpreted this provision of the EIDA as follows 10 The legislation is clear Agreement to contractual terms can be expressed by touching or clicking on an appropriately designated icon or place on a computer screen The fact that the contract could have alternatively been executed by printing a hard copy and having a participant sign a hard copy form does not detract from the foregoing The fact that there are optional ways to execute the contract does not lead to the conclusion that using only one of those options does not constitute agreement 39 The defendant argues that contrary to all of the above an actual signature is essential because it confirms the persons identity and a signature conveys a message in this case acceptance However I do not find that argument persuasive 2023 SKKB 116 CanLII 21 I agree a signature in the classic presentation does denote identity and confirmation of an agreement See para 56 following in this judgment However that in itself does not prevent the use of a modern day emoji such as a 40 Counsel for Achter remonstrates 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 for example what does a emoji mean or a emoji mean etc Counsel argues the courts will be inundated with all kinds of cases if this court finds that the emoji can take the place of a signature This appears to be a sort of public policy argument I agree that this case is novel at least in Saskatchewan but nevertheless this Court cannot nor should it attempt to stem the tide of technology and common usage this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like 41 I acknowledge the defendant relies on CanAm Farms Ltd v Parkland Pulse Grain Co Ltd 2004 SKQB 58 However that case is distinguishable on the facts In that case the grain buyer was waiting to hear back from a seller nothing had been agreed upon and there was no consensus as idem There was no contract signed Justice Krueger held it was incumbent on the grain buyer to inquire with the seller subsequent to the parties telephone call to see what was going on Here the emoji was Chriss response to an offered flax contract This is substantially different in my opinion 42 For the above reasons I find that the parties entered into a binding legal contract under the unique circumstances of this case Therefore this issue does not require a trial 2023 SKKB 116 CanLII 22 ii Certainty of Terms 43 Achters statement of defence claims that the flax contract fails for certainty of terms In his authoritative text John D McCamus The Law of Contracts 3d ed Toronto Irwin Law Inc 2020 at 9798 sets out the law on certainty of terms and contracts as follows In order for an agreement to be enforceable the parties must have reached agreement on all the essential terms of their agreement As is often said the parties must make the agreement the courts will not make it for them Further the parties must so express themselves that their meaning can be determined with a reasonable degree of certainty Scammell and Nephew Ltd v Ouston 1941 AC 251 Where the parties either fail to reach agreement on the essential terms of the agreement or express themselves in such fashion that their intentions cannot be divined by the court the agreement will fail for lack of certainty of terms In such circumstances the parties have not reached a sufficient consensus ad idem to enable the courts to enforce their agreement At the same time the requirement of certainty of terms and its underlying rationale must be balanced against the practicalities of transactional negotiations Parties may be unable to anticipate and articulate agreements with respect to future events and may intentionally leave gaps in their agreements to provide for future and mutually satisfactory accommodations Parties especially those not advised by lawyers may be unaware of the nature of all the essential terms to be stipulated in the particular context Parties may assume that reasonable or the usual arrangements will apply to an undetermined matter In all such cases the parties may intend to enter into binding contractual arrangements and believe that they have successfully done so Rigid application of the doctrine of certainty therefore could produce much mischief especially in cases where the parties detrimentally rely on the assumption that a valid and enforceable agreement has been created Accordingly courts will attempt to fill gaps and find meaning in agreements in circumstances where it appears that a binding agreement was intended by the parties 44 Justice Jackson set out three general categories for considering the doctrine of uncertainty of contract in Harle v 101090442 Saskatchewan Ltd 2014 SKCA 6 at para 41 2014 4 WWR 783 A contract can be incomplete in the sense that there is no agreement on an essential term A contract can be an agreement to agree in 2023 SKKB 116 CanLII 23 the sense that the parties have stipulated in an agreement that they intend to reach an agreement in the future A contract can be impermissibly vague on an important term in the sense of an incurable uncertainty 45 Achter relies on two facts to support its contention the flax contract is void for uncertainty The first is Achter notes that Kent did not text a photograph of the General Terms and Conditions found on the back of the flax contract to Chris and secondly the photograph of the flax contract texted to Chris stated the delivery period as Nov Achter argues without the accompanying General Terms and Conditions the agreement lacks essential terms In regard to the Nov delivery date the argument appears to be that the texting of the delivery period as Nov is impermissibly vague I do not accept these arguments for the following reasons 46 The modern judicial approach to contractual interpretation directs the courts to consider the surrounding circumstances of the contract often referred to as the factual matrix Sattva Capital Corp v Creston Moly Corp 2014 SCC 53 at para 46 2014 2 SCR 633 Sattva 47 Justice Mitchell in 101034761 Saskatchewan Ltd v Mossing 2022 SKQB 193 Mossing applied Justice Rothsteins understanding of the present state of contract law set out in Sattva by noting courts must read contracts in the context of the surrounding circumstances known to the parties at the time of the formation of the contract Mossing at para 107 The surrounding circumstances or factual matrix include facts that were known or reasonably capable of being known by the parties when they entered into the written agreement Mossing at para 107 However the factual matrix cannot include evidence about subjective intentions held by the parties Mossing at para 107 The question about whether the parties intended to enter into a contract and whether the essential terms of the contract can be ascertained with a 2023 SKKB 116 CanLII 24 reasonable degree of certainty is to be determined from the perspective of a reasonable objective bystander aware of all the material facts Mossing at para 109 The subjective intention and beliefs of the parties are irrelevant and have no place in the interpretive process Mossing at para 110 48 I will now apply the law to the factual matrix in this application The parties had a long standing business relationship leading up to March 2021 Achter had entered into many deferred delivery purchase contracts with SWT leading up to March 26 2021 The terms and conditions were set out repeatedly in these contracts Chris may have been thinking about a form of production contract but he never told Kent A reasonable objective bystander aware of all of the previous contractual history would believe the same contract was being entered into a deferred delivery production contract The terms and conditions had never changed on the standard boiler plate reverse of the document Chris received the front of the deferred delivery contract The fact that he did not receive the reverse does not in my opinion invalidate the contract for uncertainty The reality of the situation informs the court that Chris would have known from the many previous contracts what the terms and conditions on the flax contract would be since the front page was clearly titled Deferred Delivery Production Contract Chris argues that he wanted a production contract with an act of God clause that favoured the producer However that was never conveyed to Kent and it does not matter under these circumstances what Chris may have thought Accordingly the defendants argument that the absence of the Terms and Conditions boiler plate creates an uncertainty is not persuasive 49 I agree with the plaintiffs approach that even if the general terms and conditions are not part of the flax contract the essential terms of the flax contract are contained in the first page of the contract that was texted to Chris and to which he 2023 SKKB 116 CanLII 25 confirmed The question is whether the contract as presented disclosed the substance of the parties agreement The agreement did convey with sufficient clarity the essential terms in agreement being the parties SWT and Achter the property flax and the price Mossing at paras 112113 It is understood that courts will not enforce an agreement where an essential term is too uncertain but nevertheless every effort should be made to ascertain the substance of the agreement Mossing at para 115 In my view there are no missing or unascertainable essential terms in the flax contract the parties property and price were crystal clear 50 I will briefly discuss the defendants contention that the listing in the flax contract of a Nov delivery date is too vague This in my view is a red herring The parties would have known based on their previous dealings and the context in which the flax contract was discussed that this meant November 2021 delivery date Kents September 14 2022 affidavit paras 8 10 and 11 set out above This is the only logical interpretation There is no uncertainty as to the delivery date in my opinion 51 Therefore I do not find that the flax contract was void for uncertainty and there is no genuine issue requiring a trial on this point c Were the requirements of the SGA met 52 Achter also defends the claim on the basis that the requirements of s 6 of the SGA were not met in the circumstances Section 6 of the SGA is reproduced as follows When contract enforceable by action 61 A contract for the sale of goods of the value of 50 or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold and actually receive the same or give something in earnest to bind the contract or in part payment or unless some note or 2023 SKKB 116 CanLII 26 memorandum in writing of the contract is made and signed by the party to be charged or his agent in that behalf 2 This section applies to every such contract notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of the contract be actually made procured or provided or fit or ready for delivery or that some act may be requisite for the making or completing thereof or rendering the same fit for delivery 3 There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognizes a preexisting contract of sale whether there be an acceptance in performance of the contract or not Emphasis added 53 The only issue in this case is the note or memorandum in writing and signed by the party element i Electronic Signatures Requirements of s 6 of the SGA 54 The plaintiffs brief ably sets out some background that in my view is not at issue 68 The requirement of a note or memorandum in s 6 of the SGA originated as s 17 of the Statute of Frauds of 1677 The Statute of Frauds does not require the entire agreement to be in writing compliance may found if the essential terms of the agreement are set out in an acceptable note or memorandum Faer v Krug 2020 SKQB 298 at para 55 see also SM Waddams The Law of Contracts 6th ed Aurora Ont Canada Law Book 20210 at 231 Waddams Courts have interpreted s 6 as requiring a document expressly or implicitly identifying the parties the goods sold and the price the consideration if a price was agreed upon Gerald Fridman Sale of Goods in Canada 6th ed Toronto Carswell 2013 at 4243 Fridman However the note or memorandum does not need to be a singular document it may be multiple documents so long as there is reference between the documents Fridman at 4243 see also Waddams at 231234 69 To fulfill sic the signature requirement the signature does not need to be a signature in the strict sense of the word so long as it shows that it is the defendant who is agreeing to the terms Fridman 2023 SKKB 116 CanLII 27 at 4245 see also Waddams at 231234 The word writing or similar terms includes anything represented or reproduced by any mode of representing or reproducing words in visible form The Interpretation Act 1995 SS 1995 c I112 s 271 Section 8 of EIDA also confirms that a requirement of any law that any information or document be in writing is satisfied if the information or document is in electronic form 55 The EIDA states Signatures 141 A requirement pursuant to any law for the signature of a person is satisfied by an electronic signature 56 The term electronic signature is defined in the EIDA as follows 3 In this Part b electronic signature means information in electronic form that a person has created or adopted in order to sign a document and that is in attached to or associated with the document 57 Justice Layh in IDH Diamonds NU v Embee Diamond Technology Inc 2017 SKQB 79 2017 9 WWR 172 Embee in considering signatures and what signatures are meant to convey stated 43 I find this discussion significant because it shows that even absent specific legislation allowing for acceptance of electronic signatures courts have considered an electronic signature as a valid signature simply under longstanding principles of common law I agree The common law has always applied a wide range of analysis to determine the sufficiency of a signature For example an ordinary signature at the foot of a document probably provides more comfort as to the authenticity of its contents than a signature at the head of a document even though both are signed Common law courts have considered several deviations from wet ink signatures including simple modifications such as crosses initials pseudonyms printed names and rubber stamps 58 It is important to note that Justice Layh meant this reasoning to apply to 2023 SKKB 116 CanLII 28 a cross section of statutes ie he was deciding a Limitations Act SS 2004 c L161 claim but looked to jurisprudence under The Saskatchewan Insurance Act RSS 1978 c S26 I find his sound reasoning to equally apply to the SGA 59 The common law has developed in these modern times to hold that emails are sufficient to constitute in writing and signed requirements Embee at paras 4855 Buckmeyer Estate Re 2008 SKQB 141 2008 9 WWR 682 Love v Love 2011 SKQB 176 201111 WWR 614 and Love v Love 2013 SKCA 31 359 DLR 4th 504 I have already referred to Justice Schermans findings in Quilichini where he found clicking on the I agree icon constituted an electronic signature in a go kart waiver document Quilichini at para 6 The court in that case decided that the clicking on the I agree icon meant the customer was agreeing to contractual terms that can be expressed by touching and clicking on an appropriately designed icon or place on a computer screen Quilichini at para 10 I find therefore there is case authority for the use of email and the use of electronic nonwet ink signatures to identify the person signing and to establish the persons approval of the documents contents 60 The issue that remains is is a emoji good enough to meet the requirements of the SGA in the unique circumstances of this case 61 I find that the flax contract was in writing and was signed by both parties for the purposes of the SGA There is no dispute that Kent electronically signed on behalf of SWT The new twist is did Chriss emoji constitute a signature 62 In my opinion the signature requirement was met by the emoji originating from Chris and his unique cell phone agreed upon statement of facts para 2 crossexamination of Chris T67T610 T286T2820 which was used to receive the flax contract sent by Kent There is no issue with the authenticity of the text message 2023 SKKB 116 CanLII 29 which is the underlying purpose of the written and signed requirement of s 6 of the SGA Again based on the facts in this case the texting of a contract and then the seeking and receipt of approval was consistent with the previous process between SWT and Achter to enter into grain contracts 63 This court readily acknowledges that a emoji is a nontraditional means to sign a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a signature to identify the signator Chris using his unique cell phone number and as I have found above to convey Achters acceptance of the flax contract 64 I therefore find that under these circumstances that the provisions of s 6 of the SGA have been met and the flax contract is therefore enforceable There is no issue in this regard that requires a trial d Assessment of Damages 65 The plaintiff sets out in its brief which does not appear in contest the following 92 The assessment of damages in the within proceeding is straight forward and formulaic Section 50 of the SGA sets out proper measure of damages as follows Damages for nondelivery 501 Where the seller wrongfully neglects or refuses to deliver the goods to the buyer the buyer may maintain an action against the seller for damages for nondelivery 2 The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the sellers breach of contract 3 Where there is an available market for the goods in 2023 SKKB 116 CanLII 30 question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or if no time was fixed then at the time of the refusal to deliver 93 Subsection 503 clearly provides that the prima facie measure of damages for a buyer against a seller for nondelivery is the difference between the contract price and the market price at the time that delivery ought to have been made see also Puddell Farms JGL Commodities Ltd v Puddell Farms Ltd 2018 SKQB 345 at para 69 73 Here the contract price is set out in the Flax Contract and the market price at delivery is the market price on November 30 2021 as this is the final day in the delivery period that Achter was entitled to deliver the flax 94 The contract price is 1700 a bushel which works out to 66926 a tonne The market price on November 30 2021 is 4100 a bushel which works out to 161409 a tonne The difference is 2400 a bushel which works out to 94483 a tonne The Flax Contract was a for a sic total of 87 tonnes of flax Multiplying the tonnes by the difference in price amounts to prima facie damages of 8220021 there is no evidence to rebut this prima facie calculation 66 I accept the above I therefore find that the plaintiffs damages for the breach of the flax contract by Achter shall be set at 8220021 and there is no issue in this regard requiring a trial VI JUDGMENT 67 I am satisfied that I should grant the plaintiffs application for summary judgment There are no genuine issues that require a trial This is an expeditious and proportional way to resolve these matters 68 The court holds for the above reasons that there was a valid contract between the parties that the defendant breached by failing to deliver the flax The plaintiff has established that the damages should be set at 8220021 plus interest and costs The Prejudgment Interest Act SS 19848586 c P222 is more appropriate 2023 SKKB 116 CanLII 31 under these circumstances than the interest rate advanced by the plaintiff I note the plaintiff requested costs under column 2 This case did raise novel issues but on the balance was not overly complicated I order costs payable to the plaintiff in the usual manner under column 1 69 The court therefore orders a The plaintiff SWTs application for summary judgment is granted b There shall be a judgment against Achter for damages in the amount of 8220021 payable to SWT plus interest on the said 8220021 as per The Prejudgment Interest Act from and after November 30 2021 to the date of the order and c SWT shall receive fixed costs of 500 for the notice of objection application and in addition SWT shall receive from Achter costs assessed under column 1 of the Tariff J TJ KEENE 2023 SKKB 116 CanLII Teoria geral do Direito Civil Resumo sobre o caso Joinha do Canadá e interpretação segundo a nossa legislação Legislação Brasileira Primeiro é preciso entender O caso em questão tratase de um comprador de grãos no Canadá no qual enviou uma mensagem de texto em para muitos clientes dizendo que estava interessado em comprar 86 toneladas de linho a um preço de 17 dólares canadenses por alqueire Ele conversou com um fazendeiro por telefone e enviou a foto de um contrato para entregar o linho em novembro e pediu para o fazendeiro confirmar a compra Então ele respondeu com um emoji de polegar para cima mas não entregou o linho na data fixada no contrato O argumento foi que o emoji significava concordância com o negócio Porém contrarrazão o comprador disse que o emoji era apenas para informar que recebeu o contrato Mesmo reconhecendo que o emoji não é um meio tradicional de assinar um contrato o juiz julgador do caso concluiu na sentença que o tribunal não pode nem deve tentar frear a maré da tecnologia e do uso comum dos emojis Então no caso o tribunal canadense considerou o emoji do gesto positivo com o polegar como a aceitação do contrato uma verdadeira assinatura e concordância com seus termos uma forma válida para celebração de um contrato Tal fato resultou numa condenação da parte que descumpriu o contrato no montante de 82 mil dólares canadenses aproximadamente 61 mil dólares americanos Análise do caso Interpretação segundo a legislação pátria Todo contrato precisa apresentar um acordo e vontade entre as partes ou seja a vontade bilateral é necessária para que o contrato seja celebrado Sem isso não há como existir o contrato Só se forma um contrato quando as partes entram em acordo sobre o objeto e o conteúdo do contrato Importante salientar que o direito reconhece eficácia no silêncio para fins de aceitação de herança ou ainda nos casos de prorrogação de contrato após o vencimento Atualmente é muito comum a renovação automática de contratos se a parte avisada dessa possibilidade permanecer em silêncio O artigo 432 do CC é expresso ao afirmar que Se o negócio for daqueles em que não seja costume a aceitação expressa ou o proponente a tiver dispensado reputarseá concluído o contrato não chegando a tempo a recusa A existência de fato da declaração de vontade nem sempre significa sua existência sob o ponto de vista jurídico Dizse que a manifestação da vontade contratual é inexistente juridicamente nos casos de coação física falta de consciência da declaração de vontade e ainda no caso de declarações que não sejam sérias Em tais situações há ausência da vontade e por isso não há que se falar em formação do contrato Nos demais casos em que houve a manifestação de vontade ele ao menos existe juridicamente No ordenamento jurídico brasileiro conforme as afirmações acima é claro que são possíveis manifestações não verbais de vontade para a conclusão de um contrato Admitese até o silêncio Mas um emoji pode assumir esse papel de comunicação não verbal para a conclusão de um contrato Os emojis podem sim exercer o papel de conclusão de um contrato atualmente14 mesmo no direito brasileiro Para representarem a aceitação de um contrato os emojis devem traduzir na conversa uma intenção clara e inequívoca de celebrar o contrato Havendo dúvidas quanto a essa conclusão outros elementos da comunicação havida entre as partes devem ser considerados Não sendo possível concluir que houve realmente a manifestação de vontade no sentido da aceitação do contrato não se deve reconhecer a existência do contrato Muito além da forma da assinatura do contrato a legítima expectativa gerada nas partes por meio do comportamento contratual é o ponto relevante neste caso Considerando o panorama apresentado ao tribunal canadense no caso aqui da nossa legislação provavelmente seguiria a mesma linha Isto porque os princípios da boafé e da probidade estão consagrados expressamente no nosso ordenamento jurídico Ademais vários institutos decorrentes da boafé são reconhecidos e aplicados pela jurisprudência pátria As decisões fazem prevalecer a confiança e a legítima expectativa gerada pelas partes ao mesmo tempo em que proíbem comportamentos contraditórios É exigência legal que as partes atuem de boafé O padrão comportamental em qualquer fase negocial deve se basear na lealdade e na integridade de caráter Com isso os contratantes têm o dever de agir com lealdade e confiança recíprocas Portanto a importância deste caso vai muito além de saber se o emoji é uma assinatura de contrato A atenção precisa estar voltada para o comportamento costumeiro das partes nas tratativas negociais levandose em conta os elementos essenciais da relação comercial a forma de comunicação tradicional entre os contratantes e as expectativas criadas e atendidas Em última análise o que importa é a confiança e a conduta legitimamente esperada pelos contratantes considerando o histórico deste ambiente negocial Isto sim vai definir como os negócios são realizados dentro daquele contexto específico Lendo a notícia dá para perceber que o emoji acaba sendo o menos importante na história toda e na causa no que tange o ordenamento jurídico O contrato em questão é solene porque O emoji de polegar para cima o popular joinha é tão válido quanto uma assinatura Foi o que decidiu um juiz canadense ao julgar uma ação envolvendo uma disputa comercial Sabe se que um contrato é tido como solene quando para ser formalizado precisa seguir uma forma prescrita em lei Esta forma é uma condição de validade para o negócio jurídico e se não for atendida o contrato será nulo O juiz entendeu que o joinha fez com que o contrato fosse celebrado portando entendese que o contrato é solene Referências httpswwwmigalhascombrdepeso390404epossivelaconclusaode umcontratoporemojinodireitobrasileiro