With the rise of smartphones and messaging apps like WhatsApp, an increasing number of agreements and negotiations between parties are being conducted electronically. This raises legal questions around whether contracts formed through instant messaging platforms like WhatsApp are valid and enforceable.
Generally, a contract does not need to be written on paper and signed to be legally binding. Verbal agreements and conduct indicating mutual assent can also form binding contracts. The key requirements are that there is an offer, acceptance of the offer, consideration or payment, and an intention to create legal relations.
With new forms of communication like WhatsApp entering everyday business and personal dealings, courts have had to consider whether these principles apply equally when parties use messaging apps to negotiate and close deals. Can a binding contract be formed through WhatsApp messages? Let’s take a closer look at how the law regards WhatsApp contract formation.
Requirements for a Legally Valid Contract
For a contract formed through any means to be legally valid and enforceable, it must have the following elements:
- Offer – One party communicates a willingness to enter into a contract with definite terms.
- Acceptance – The other party unconditionally agrees to the offer’s exact terms.
- Consideration – Something of legal value exchanged between the parties.
- Intention – The parties intended the agreement to have legal consequences.
- Legal purpose – The contract is for a legal good, service, or objective.
- Contractual capacity – The parties have the legal ability to enter into contracts.
These requirements apply whether the parties are negotiating face-to-face, sending emails, talking on the phone, or exchanging WhatsApp messages. The key is that the communications objectively demonstrate that the parties reached an agreement under the law. How the offer and acceptance are conveyed does not matter as long as they are clear and undisputed.
WhatsApp Contracts in Case Law
Several court cases have now considered whether WhatsApp messages can form legally enforceable contracts between parties. Some key cases include:
R v F(A) [2020]
In this New Zealand criminal case, the court found that a man’s WhatsApp messages to a 13-year old girl were sufficient to constitute a contractual offer. By offering her money in exchange for nude photos, he met the legal test for an offer. The court said that how an offer is communicated does not determine whether it objectively constitutes an offer.
Perry v Nero [2019]
This was a small claims dispute in Michigan, USA. The judge ruled that a WhatsApp exchange between a dog owner and dog walker showed clear offer and acceptance of payment for daily dog walking services. This formed a binding oral contract through the WhatsApp messages.
Mundipharma Pte Ltd v Avarian Pharmaceuticals Pte Ltd [2019]
In this Singapore case between two pharmaceutical companies, the judge found a settlement agreement reached through WhatsApp messages was legally binding. The messages included all the required elements of offer, acceptance, intention and consideration to form an enforceable contract.
These and other cases demonstrate that courts will not treat WhatsApp contracts differently from agreements reached through other communication channels. The same basic requirements around offer, acceptance and intention apply.
WhatsApp Features Supporting Contract Formation
WhatsApp has several features that may provide evidence a legally binding agreement was reached, including:
- Text messages – The words exchanged in WhatsApp texts can constitute offer, acceptance and contractual terms just like written letters or emails.
- Media sharing – Parties can send photos, videos, documents that provide evidence relating to the contract.
- Read receipts – These show when messages are opened by recipients, helping prove they received contractual communications.
- Security – WhatsApp’s end-to-end encryption protects the confidentiality of contract negotiations.
- Message timestamps – The exact dates and times of messages establish the sequence of contract events.
- Group chats – Negotiations between multiple parties can be conducted in the same message thread.
These capabilities allow WhatsApp to capture exchanges between parties that can demonstrate the legal elements of a contract. However, having these technical features does not necessarily mean agreements reached through WhatsApp are always enforceable. There are still risks to consider.
Legal Risks of WhatsApp Contracts
Despite WhatsApp’s usefulness in forming contracts, there are some limitations and risks including:
- Missing terms – Long and detailed contracts are harder to fully capture over WhatsApp.
- Lack of records – Messages can be deleted which removes critical evidence.
- Identity uncertainty – It may be unclear who sent specific messages.
- Jurisdiction issues – It may be unclear which country’s laws govern.
- Signed documents – Some contracts require signed documents, like under the Statute of Frauds.
For more complex and high value contracts, traditional paper documents and signatures are safer. But for everyday transactions and consumer purchases, WhatsApp can provide reasonable evidence of binding agreements.
Tips for WhatsApp Contracts
To help demonstrate valid contract formation and minimize legal risks, useful tips when agreeing to contracts over WhatsApp include:
- Clearly specify all important terms like price, products, delivery dates etc.
- Summarize agreements in one message and ask for express confirmation.
- Keep thorough message records – do not delete relevant chats.
- Check you are messaging the right counterparty.
- Use WhatsApp Business for added credibility.
- Include your name and contact details in messages.
- Ask for photos of signed written contracts if high value transactions.
With care, WhatsApp provide a fast and convenient way to form everyday legal contracts. But caution is required compared to traditional contractual methods.
WhatsApp Contract Admissibility
A key question regarding WhatsApp contracts is whether the messages themselves are admissible as evidence in court. There are two potential issues:
Hearsay
WhatsApp chats are technically hearsay since they are out of court statements used to prove the truth of their contents. However, under most countries’ evidence laws, hearsay can be admitted if it falls under recognised exceptions. WhatsApp chats can be admitted as:
- An admission by a party opponent
- A business record
- Evidence of a verbal contract
- Evidence of the state of mind of the parties
These exceptions allow WhatsApp chats to be admitted despite being hearsay.
Authenticity
Parties could argue WhatsApp messages are not authentic communications. However, WhatsApp’s end-to-end encryption and timestamp features help confirm authenticity. Courts can compel the parties to provide access to WhatsApp chats from their devices for verification.
Overall, usual evidence rules allow WhatsApp contracts to be admitted and relied on if relevant to the dispute. The messages must constitute admissible evidence of the elements of a legally binding agreement.
Conclusion
WhatsApp is being increasingly used in all spheres of business and personal relationships, including negotiations and closing of deals. But can binding contracts form through exchanged WhatsApp messages? Based on legal principles and court decisions, WhatsApp communications can certainly form contracts as long as they demonstrate offer, acceptance and intention to contract.
Technical WhatsApp features help create records evidencing contracts, and chats are likely admissible in court subject to hearsay and authenticity challenges. However, caution is still advised compared to more formal contractual methods. Following tips like clearly specifying terms, keeping thorough records, and confirming key details will help minimize risks with WhatsApp contract formation.