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“[[In writing]]” means ''recorded for posterity, in words ingestable by means of the eyes, as opposed to the ears''. This is not the OED definition, I grant you — I made it up just now — but it zeroes in on the immutable fact that, whether it is on parchment, paper, cathode ray tube, LED screen or electronic reader, you take in [[in writing|writing]] by ''looking at it''. Not [[orally]] — from the mouth — or for that matter, ''aurally'' — | “[[In writing]]” means ''recorded for posterity, in words ingestable by means of the eyes, as opposed to the ears''. This is not the OED definition, I grant you — I made it up just now — but it zeroes in on the immutable fact that, whether it is on parchment, paper, cathode ray tube, LED screen or electronic reader, you take in [[in writing|writing]] by ''looking at it''. Not “[[orally]]” — from the mouth — or for that matter, “''aurally''” — through the ears — nor, in the [[JC]]’s favourite example, via semaphore — by a chap waving flags from a distant hill — but in visible sentences, made up of visual words. | ||
Could “writing” include GIFs? [[Emoji]]s? We ''suppose'' so — but do you “write” them, as such? — but to the wider question “can | Sentences. Words. Mystic runes carved upon the very living rock. Anything else? Could “writing” include memes? GIFs? [[Emoji]]s? We ''suppose'' so — but do you “write” them, as such? — but to the wider question “can communications apprehended visually but of a non-verbal nature be contractually significant?” the answer is undoubtedly ''yes''. | ||
Acceptance, to be legally binding, ''need not be “[[in writing]]”''. Nor “[[orally]]”. [[Acceptance]] just needs to be ''clear''. ''Whether'' one has accepted is a matter for the laws of ''[[evidence]]''. There is little doubt that one who has [[signed, sealed and delivered]] a parchment deed by quill in [[counterpart]] has accepted its contents — it is about as good evidence as you could ask for, short of the fellow admitting it in cross-examination — but a merchant need not, and often does not, reach this gold standard when concluding [[Contract|commercial arrangements]] about town. | Acceptance, to be legally binding, ''need not be “[[in writing]]”''. Nor “[[orally]]”. [[Acceptance]] just needs to be ''clear''. ''Whether'' one has accepted is a matter for the laws of ''[[evidence]]''. There is little doubt that one who has [[signed, sealed and delivered]] a parchment deed by quill in [[counterpart]] has accepted its contents — it is about as good evidence as you could ask for, short of the fellow admitting it in cross-examination — but a merchant need not, and often does not, reach this gold standard when concluding [[Contract|commercial arrangements]] about town. | ||
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Who has not stumbled morosely into the newsagent of a Sunday morning, wordlessly pushed a copper across the counter and left with a copy of ''The Racing Post'', not having exchanged as much as a glance with the proprietor? Do we doubt for an instant that a binding contract was formed during that terse interaction? | Who has not stumbled morosely into the newsagent of a Sunday morning, wordlessly pushed a copper across the counter and left with a copy of ''The Racing Post'', not having exchanged as much as a glance with the proprietor? Do we doubt for an instant that a binding contract was formed during that terse interaction? | ||
There is, in theory, a whole ecosystem of non-verbal communications — winks, nods, wags, shaken heads, facial tics and cocked eyebrows — and nor should we forget, those who stand on distant hills and communicate by smoke signal, Greek heroes who | There is, in theory, a whole ecosystem of non-verbal communications — winks, nods, wags, shaken heads, facial tics and cocked eyebrows — and nor should we forget, those who stand on distant hills and communicate by smoke signal, Greek heroes who miscommunicate their safe return by sail colour<ref>Sail configuration can be tricky especially if you are absent-minded, however, as [[Theseus]]’ father-in-law might have told you, had he been around to do so.</ref> or modern admirals who transmit instructions to the fleet using a flag sequence. | ||
Any of these can, in theory, convey [[offer]], [[acceptance]] and [[consideration]] as well can a written or oral communication. | Any of these can, in theory, convey [[offer]], [[acceptance]] and [[consideration]] as well can a written or oral communication. | ||
=====[[Emoji]]s===== | |||
The King’s Bench of Saskatchewan — not an English court to be sure, but of persuasive value, especially when speaking this much sense — has recently affirmed the [[JC]]’s conviction about [[emoji]]s 😬. | |||
In an argument about whether a merchant was bound to supply a consignment of flax on the back of an exchange of SMS messages. | |||
The plaintiff drew up a contract to purchase SWT 86 metric tonnes of flax from the defendant, wet-signed it, took a photo of the contract and texted the photo to the defendant with the text message: “Please confirm flax contract”. | |||
The defendant texted back “👍”. | |||
The defendant didn’t eventually deliver the flax, and by the time the plaintiff could source alternative flax prices had gone up. The plaintiff claimed damages. | |||
The defendant argued the thumbs-up emoji simply confirmed that he received the Flax contract but was not acceptance of its terms. He claimed he was waiting for the full terms and conditions of the Flax Contract to review and sign. Partly on the basis of a prior [[course of dealing]] with deals done on monosyllabic text messages, the court wasn’t having it: | |||
{{quote|“This court readily acknowledges that a 👍 emoji is a non-traditional 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 ... and as I have found above – to convey ... acceptance of the flax contract. | |||
I therefore find that under these circumstances that the provisions of ''[the Canadian Sale of Goods Act 1978]'' have been met and the flax contract is therefore enforceable. ”<ref>''[https://www.canlii.org/en/sk/skkb/doc/2023/2023skkb116/2023skkb116.html South West Terminal Ltd. v Achter Land, 2023 SKKB 116]''</ref>}} | |||