What we Intend

We are in a state of transition. The world is changing around us. Tomorrow will not necessarily look like today. That said, anyone, anytime could write that conclusion and be as prescient. The world is, and always has been, changing. This is true of the physical, just ask your neighborhood brontosaurus. It is true in many ways. One that I have focused on over the years is technology. We are so proud of our technology. 

The law often struggles to keep up with technology. See Salim Ismail and a Lifechanging Seminar (May 2015). He explained that there are laws requiring cars to have rearview mirrors, but none that require a steering wheel. We, therefore, have driverless cars on the road today that have mirrors never used but do not have steering wheels. Some will see incongruity in that. Others will see humor. Others will wonder what mirrors are for anyway (they think the turn signal is all that is needed, and it is the other driver's job to avoid them when they turn or change lanes). 

The law struggles. That is not to say it is overcome. The law also evolves. That is the nature of law sometimes as legislative bodies change the language of statutes. It can also be the nature of law when courts make turns, even U-turns. See Child Factory Labor (July 2022). The occurrence of change in the law is a strong probability in many instances. 

I have learned to text over the years. That was an evolution that I did not take to easily or voluntarily. In the end, it became apparent that texting would be a necessary adjunct if I wished to communicate with my kids. The next generation took to the concept way before there were smartphones. These people were texting on a simple 10-digit flip phone, and a vast array of abbreviations were coined. Lists were published to help us seasoned citizens to play along. 

That next generation soon became enamored also with emojis. They were first deployed in Japan in 1998. We likely all know what an emoji is, a small caricature or picture intended to communicate something. They became common for communicating emotions, and their convenience strongly drives their appeal. In a world where many type with their thumbs or struggle to text with one finger, the brevity and simplicity of the emoji is a dramatic attraction. 

The problem with emojis is that they have some potential for misinterpretation. In 1921, Frederick R. Barnard, wrote that "One look is worth a thousand words." This became the catchphrase "A picture is worth a thousand words," and that saying has become a part of our lexicon. And there is truth to that assertion, but which of those thousand words is intended when an emoji is selected? I have received many texts over the years, and admittedly many emojis. Often, I have no clue what the sender is trying to communicate. More than once, I have replied with "what does that mean?"

Over time, there has been evolution from that original set of little face pictures that each cell phone provider developed. About a decade ago, various tech providers agreed to quit providing their proprietary emoji collections and instead to agree to a single emoji library for use by all. That evolution brought the hope of greater uniformity and perhaps greater comprehension. "By 2014, there were a total of 722 emojis in the standard Unicode 6.0 set. 

As that population has grown, some of the additions have been pretty easy to interpret. Grinning face is reasonably simple:😀.  Others perhaps less so, such as "angry face" 😠and "confounded face" 😖. Confounded, to me, always looks angrier than "angry." Perhaps the easiest is the food, such as pizza 🍕, watermelon 🍉, french fries 🍟, and cookies 🍪. Over time, I have received many of these, and there is a persistent chance of either miscommunication or misinterpretation. I had someone ask me once "what does this face mean," and showed me the cookie. I told her it means "hungry face," but she did not get the joke. 

In July 2023, a court actually concluded that an emoji was "just as valid as a signature" in a contract dispute, as reported by the Guardian. An important point is that the two people in this contract knew each other and had done business before. In contracts, under the uniform commercial code, prior dealings between parties to a contract may be relevant in determinations of intent. In this case, it was a grain buyer and farmer. The buyer texted a picture of a proposed contract to the farmer, who replied with a "thumbs up," 👍. 

The buyer took that communication as assent to the contract, "86 tonnes of flax at $12.73 per bushel." That alone might raise an eyebrow, "Tonnes" are a measure of weight and bushels are a measure of volume. Long ago, the grain market established a practice called "test weights" to account for just that incongruity.  The Canadian court sided with the buyer and concluded that the farmer had indeed agreed to the contract terms with the 👍.

In doing so, it disagreed with the farmer's contention that his intent with the 👍was merely acknowledgement, that is "I got your text." I had some dealings with "Silent Generation" fellow a few years back. He was enamored with the 👍. I recall voicing to him my perception that he had agreed to a course of action with the 👍 he texted. He was of the same mindset as the Canadian farmer, explaining that he only intended confirmation of delivery. Thus, in two anecdotal examples we see misunderstanding. Hopefully, the Canadian court did not editorialize and insult the farmer's intellignce. I should be so lucky. At least I did not have to pay $61,442 as the farmer did.

There were legal points. Opinions were expressed as to the meaning of emojis. There was legal wrangling as to whether a lay witness might express such an opinion, or whether expertise is necessary. There was testimony regarding intent, and the potential that such interpretations might  open a pandora's box of legal issues. If the 👍 is assent, then what of " the "fist bump and handshake?" One might argue these are equals in the eyes of the world, or perhaps the fist-bump not as much?

What is the "common usage” of emojis generally, and perhaps more importantly what is the common usage of the person sending it? That poor person I misled about the cookie may well be sending that to her grandchildren to express "hungry face" to this day. Poor children. The point is likely what the sender intends, and there is the challenge of what the receiver interprets. There is the specter of prior dealings (if a thumbs-up meant assent last time, then there is a good chance it will this time). 

The court characterized this a "the new reality in Canadian society" (emojis) and cautioned that "courts will have to be ready to meet the new challenges." Lawyers learned this lesson long ago, in a parralel sense. The common law of contract had specificity requirements and arcane constraints. The Uniform Commercial Code came along in 1953 and changed that for many transactions. With the decreased formality, contracts could be more easily formed. Commerce benefitted. Parties quickly learned to beware of the risks that presented. 

The "new reality" is no different. Communication remains critical to the contract. All that this decision from our northern neighbors means is that there is the potential for misunderstanding in communication. We knew that already. Pictures are quicker (a "thousand words" in a single picture, at a glance). So, with expediency (texting, emojis) can come speed and ease. But, so too can come misunderstanding. 

It is not that words cannot be equally unclear. They can. Punctuation has been critical in decisions over the years. See Oxford Comma (March 2017). The point is, for most of us, when dealing with tens of thousands of dollars there is likely value in taking a few minutes and at least striving for clarity in our communications.