WhatsApp messages can be valid contracts

The High Court has delivered a pivotal ruling recently in Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) [2025] EWHC 1134 (TCC) that confirms enforceable contracts can be formed through informal social media platforms such as WhatsApp. 

This decision serves as a pointed reminder that carrying out negotiations through casual messaging apps can carry serious legal consequences, as enforceable obligations will crystalise when the essential ingredients of a contract are present.

It follows that existing contracts may be varied and notices validly serviced through social media communications. Further, the use of emojis may be effective in contractual negotiations and for notifications.

Financial institutions and companies that use social media, and their employees who interact with clients and customers through social media, will need to ensure that communications have the intended effect.

What are the essential ingredients of a contract?

• Offer 
  • An expression of willingness to contract on specific terms, intended to become binding upon acceptance.
• Acceptance 
  • A final and unqualified agreement to the terms of the offer, which can be communicated through words or conduct.
• Consideration 
  • Something of value exchanged between the parties, such as a promise or payment, unless the contract is made by deed.
• Intention to create legal relations 
  • A mutual intention by the parties to enter into a legally binding agreement, determined by the circumstances of the case.
• Capacity
  • Each party must have the legal ability to enter into a contract, and agents must have actual or apparent authority.
• Certainty and completeness
  • The terms of the contract must be clear and complete to ensure enforceability.

Background 

Jaevee Homes Ltd, a property developer, (the “Claimant”) engaged Mr Steve Fincham (trading as Fincham Demolition) (the “Defendant”) to demolish a former nightclub. The Defendant provided a written quote for his services and following some negotiation, the parties exchanged messages via WhatsApp on 17 May 2023, confirming that the Defendant had got the job. The WhatsApp message exchange mentioned start dates for the work and the monthly applications for payment, which were to be paid 28 to 30 days after receipt.

On 26 May 2023, the Claimant issued a formal subcontract and purchase order, which set out a different procedure for payment applications and payment due dates in comparison to the WhatsApp message exchange. The Defendant did not sign or acknowledge the subcontract and purchase order. 

The Defendant went on to send four invoices in a three-month period, believing it was entitled to do so in accordance with what the parties had agreed on WhatsApp. In opposition, the Claimant maintained that the WhatsApp messages amounted to informal dialogue rather than a binding agreement and proceeded to make payments based on what was deemed payable under its standard subcontract conditions.

Contract formation

The Claimant argued that the WhatsApp messages exchanged between the parties did not constitute a contract, citing the absence of agreement on key terms such as the duration of the works, the start date, and payment provisions.

The court ultimately rejected this position, clarifying that:

• The duration and start date are not essential terms in construction contracts. 
  • In the absence of express agreement, it is implied that the contractor will complete the works within a reasonable timeframe.
• Any missing or vague payment terms do not prevent contract formation. 
  • The applicable legislation (the Housing Grants, Construction and Regeneration Act 1996 and the accompanying Scheme for Construction Contracts) are designed to fill such gaps.

The court found that the parties had reached agreement on the scope of works, the commencement of site attendance, and a lump-sum price. Further, there was no indication that subsequent terms, such as the Claimant’s standard subcontract conditions, were a prerequisite to finalising the parties’ agreement. 

Additionally, the court was satisfied that the parties had agreed that payment would be made within 30 days of the submission of an invoice, and the court rejected the Defendant’s argument that multiple payment applications could be submitted each month. To the extent that the WhatsApp messages did not specify how payment applications were to be made, the court applied the Scheme for Construction Contracts to fill the gap, following the precedent set in Bennett (Construction) Ltd v CIMC MBS Ltd [2019] EWCA Civ 1515 where the Court of Appeal emphasised that statutory schemes should only override contractual terms when strictly necessary. 

As a result, the WhatsApp exchange on 17 May 2023 was held to constitute a concluded contract, and therefore the Claimant’s attempt to incorporate its own standard terms (nine days later) was ineffective due to the lack of acceptance. 

Where have we seen this before? 

The Electronics Communications Act 2000 gives communications via data messages the same effect as non-electronic documents. While there has not been a decision previously on the efficacy of a contract entered into via WhatsApp, the judgement of Southeaster Maritime Ltd v Trafigura Maritime Logistics Pte Ltd MV Aquafreedom [2024] EWHC 255 (Comm) seems to suggest that it is possible as Mr Justice Jacobs rejected the notion that a message should be disregarded, or somehow be of less significance, because it came via WhatsApp rather than email. However, this judgement did not find that there was a contract validly entered into via WhatsApp due to the contract terms still being negotiated at the time of the messages. 

On the other side of the pond, in Achter Land & Cattle Ltd. v South West Terminal Ltd 2024 SKCA 115, the Canadian courts found that a person confirming a contract via a ‘thumbs up’ reaction was a response to an offeror requesting confirmation. 

Summary

The case of Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) serves as a timely reminder to treat digital negotiations with caution and clarity. Entering contracts informally carries a number of risks such as:

• Ambiguity of message interpretation.
• Inappropriate usage of social media messaging.
• Ability of parties to delete evidence, especially on encrypted messaging services.
• Regulatory issues such as confidentiality and record keeping requirements.
• Piecemeal negotiations through protracted periods of time, potentially over different platforms and with different negotiators.

To mitigate such risk, consider these key points and implications:

• Contracts can be varied using social media platforms like WhatsApp. To avoid this, consider including an entire agreement clause or a contractual restriction on methods of modification or notification. 
• Employees can be trained on how to use social media messaging appropriately, and for financial institutions and companies to have an effective social media usage policy when used in a business context.
• For messages forming negotiations but not intended to be binding, make it clear they are ‘subject to contract’ and not conclusive negotiations. 
• The court will view contracts in different sectors differently, especially where there are no statutory terms which can be implied to ‘fill in gaps’.
• Statutory schemes act as safety nets and not replacements for negotiated terms. 

For further information, please contact Jeremy Ladyman or Melody Li.