Can My Whatsapp Conversation Really Form a Binding Contract?
Posted on in Dispute Resolution
Modern messaging technology is great in so many ways. Gone are the days of having to wait for mail to arrive; the ability to send an email, or a message via text or other social media platforms, enables life to move at a pace.
With speed and informality comes risk. Risks of giving away too much personal information, or of saying something that could be malicious or defamatory, and ending up on the wrong side of the law are perhaps more obvious. But it is the (slightly less exciting, but equally concerning) risk of inadvertently finding yourself creating a binding contract, that should be at the forefront of minds too when putting finger to keyboard, particularly if the purpose of communication is transactional in nature.
A recent High Court judgment has delivered a timely reminder that even casual exchanges can create legally binding contracts if key contractual elements are present.
The case involved a construction dispute between Javee Homes Ltd, a property developer, and Mr Fincham, a demolition contractor. The parties exchanged a series of WhatsApp messages discussing the scope of work to be carried out, pricing, and timelines. As is often the case with this type of communication, the tone was informal and chatty. However, when relations turned sour, the court was asked to consider the basis of the contract between the parties. The High Court’s conclusion was that the WhatsApp messages did, in fact, amount to a legally binding agreement.
The outcome is perhaps not surprising. The courts' general approach taken in English Contract Law emphasises substance over form. The courts are increasingly looking at the reality of the position on the ground (i.e., the parties’ interactions) rather than whether they ticked all the traditional legal boxes. Put simply, a contract does not have to be a beautifully constructed paper document signed by all parties (although that is always the best way to record agreements).
The headline? Be careful. Firing off a message before you put the phone down for the night, or before the trailers start to roll in the cinema, can have consequences. If you are negotiating any type of business transaction or contract, keeping it on a more formal level, ensuring conversations are marked as “subject to contract” and thinking properly about what you are offering or accepting, can help to protect you and minimise the risk of inadvertently binding yourself.
Type with caution. Or, better yet, seek legal advice…
How can Tozers help?
The best advice is always to take advice. Our team would be happy to assist with your queries.