Can wordless communication, such as an emoji, gesture, or symbol, constitute acceptance of a contract?

"To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate." OCGA § 13-3-1. "An offer and an acceptance are essential prerequisites to the creation of every kind of contract. Thus, the law requires that the parties consent to the formation of a contract. Until each has assented to all the terms, there is no binding contract[.]" Southeast Grading, Inc. v. City of Atlanta , 172 Ga.App. 798, 800 (2), 324 S.E.2d 776 (1984) (citations and punctuation omitted). "Assent to the terms of a contract may be given other than by signatures." Cochran v. Eason, 227 Ga. 316, 318 (1), 180 S.E.2d 702 (1971).

For there to be a valid contract, there must be a subject matter, a consideration, and mutual assent by all parties to all the terms. OCGA § 13-3-1. The subsequent communication by one party to the contract to the other party "varying only one term of the original offer" is a counteroffer. Stubbs v. Tattnall Bank, 244 Ga. 212, 213, 259 S.E.2d 466. The fact that the offeror may have intended something else does not alter the fact that appellants did tender a counteroffer to appellees. Id. at 214. Acceptance of an offer must be unconditional, unequivocal, and without variance of any sort, otherwise, there can be [187 Ga.App. 646] no meeting of the minds and mutual assent necessary to formation of a contract. B.L. Montague Co. v. Somers, 94 Ga.App. 860, 864, 96 S.E.2d 629. In the instant appeal, this issue is of doubtful significance. The original contract had expired by its own terms. The date for closing, as verbally extended, had passed, including the one requested by appellants (mid-month of July), and the one granted by appellees (July 19). Thereafter, the letter from appellant,

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dated July 30, offering to close on July 31 in accordance with the original offer, was merely an attempt to revive a contract no longer in existence and such offer was ineffective unless accepted. W.B. Leedy & Co. v. Shirley, 97 Ga.App. 801, 807(1), 104 S.E.2d 580. The appellants' offer was not accepted. The belated attempt to revive an expired contract with a changed condition was legally ineffectual. It is not material that appellants may have "[a]t all times ... had the additional $40,000 at [their] disposal," because the counteroffer they communicated to the seller was an offer to revise the original contract by adding an additional $40,000 to the seller's secondary financing. And, whether the extension obtained by Callahan from the seller was to "mid-month" (July 15) or to July 19, is not germane to any issue because appellants admitted they were informed that their requested extension had been approved, and both dates had passed when appellants attempted to revive the expired contract. This enumeration is without merit.

“Georgia contract law requires a meeting of the minds of the parties, and mutuality, and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon.” ⁸ “A contract may be enforceable even though it rests only in words as remembered by the witnesses.” ⁹

To determine whether the parties mutually assented to all essential terms of the contract, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.¹⁰

In determining whether there was a mutual assent, courts apply an objective theory of intent whereby one party's intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party's manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. Further, in cases such as this one, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.¹¹

In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party's intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party's manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. See, 1 Williston on Contracts, §§ 21-23, 94; 1 Corbin on Contracts, §§ 106-107; Verdery v. Withers, 30 Ga.App. 63, 72, 116 S.E. 894 (1923). In some instances, the only conduct of the parties manifesting intent is the express language of the agreement. In other instances, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence. See, 1 Williston on Contracts, § 21; 3 Corbin on Contracts, §§ 106, 577; and C & S National Bank v. Williams, 147 Ga.App. 205, 207-208, 249 S.E.2d 289 (1978).

Daniel contends that because Sewell did not comply with the terms of the option contract, he (Daniel) is entitled to summary judgment. Sewell does not dispute that he did not comply with the exact terms of the option contract, but contends that there is a dispute of material fact as to whether his technical breach of the notice provisions should be waived based on Daniel’s actions. See O.C.G.A. § 13-4-4.

Specifically, Sewell argues that Daniel’s conduct creates an issue of implied waiver. See Kusuma v. Metametrix, Inc., 381 S.E.2d 322, 324 (Ga. Ct. App. 1989) (noting that waiver of a breach may result from urging further performance, permitting performance, or other forms of acting as though a contract remains in force).

As noted above, Daniel and Sewell exchanged text messages in which Daniel inquired whether Sewell was prepared to purchase; Sewell responded affirmatively; Daniel replied with a thumbs’ up emoji; and Daniel then requested a purchase contract from Sewell after the option had expired. The Court agrees that Daniel’s actions create a dispute of fact as to whether there was a waiver of the technical breach.

IV. Conclusion

For the foregoing reasons, Daniel’s motion [7] for summary judgment is denied.

1. The undisputed evidence shows the existence of a binding agreement. This case turns on basic principles of contract formation and enforcement. The Thompsons actively participated in the negotiations which culminated in a compromise and settlement agreement as to all issues in the pending litigation. This is confirmed by their own attorney's deposition testimony. The discussion and understanding with respect to the per diem allowance was that it would be adequate to cover lodging and food. A specific amount was not stated. The terms of the settlement were acceptable to the Thompsons; a handshake cemented their understanding. Each party assented to the terms. OCGA § 13-3-2. All that remained was the formality of reducing those terms to written form. The court was apprised on the following day by counsel for both parties that the matter had been settled.

[209 Ga.App. 560] Pulte's attorney drafted the written document memorializing the understanding of the parties. All material terms were accepted by the Thompsons' attorney except

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for the dollar amount of the per diem reimbursement, which Pulte agreed to increase to an amount reasonably adequate to cover the expenses agreed upon.

Both Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 308 S.E.2d 544 (1983) and LeCroy v. Massey, 185 Ga.App. 828, 829, 366 S.E.2d 215 (1988), relied upon by appellants, concern settlement agreements between counsel for the parties in which the existence of an agreement was contested. Here the parties negotiated their own settlement. Likewise, OCGA § 15-19-5 is inapplicable. It requires agreements between counsel to be in writing in order to bind their clients. USCR 4.12 provides that "[a]n attorney of record has apparent authority to enter into agreements on behalf of his client(s) in civil actions. Oral agreements, if established, are enforceable." Kapiloff v. Askin Stores, 202 Ga. 292, 42 S.E.2d 724 (1947), affirmed that oral settlement agreements are enforceable. Such "contract exists [when] all essential terms have been agreed to. OCGA § 13-3-2." Bridges v. Bridges, 256 Ga. 348, 349-350(1), 349 S.E.2d 172 (1986).

The oral agreement at issue here was reduced to writing, submitted to the Thompsons, and accepted by their attorney. The trial court was correct in concluding as a matter of law that the Thompsons were bound by a definite, enforceable agreement which they may not now arbitrarily deny. "Findings of fact by the court will not be set aside by an appellate court unless 'clearly erroneous.' [Cits.]" Greene v. Colonial Stores, 144 Ga.App. 645, 647(2), 242 S.E.2d 489 (1978). As in Greene, "[t]he oral agreement was legally enforceable." Id. at 647, 242 S.E.2d 489.

It is well settled that an executory accord is an agreement to resolve an existing dispute between parties (Oanenovski v. Weaman, 275 A.D.2d 1013, 713 N.Y.S.2d 594 [4^th Dept,, 2000]). An executory accord must be in writing and signed by the party to be bound (Frank Felix Associates Ltd.. v. Austin Drugs Inc., 111 F.3d 284 [2d Cir. 1997]). Further, pursuant to Technology Law §304(2)

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"an electronic signature shall have the same validity and effect as the use of a signature affixed by hand" and includes "an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record". (Technology Law. §302(3)). While some commentaries have expressed First, there are questions whether text messages and emojis in particular satisfy the statute of frauds (see, generally. When a Picture; is Not Worth a Thousand Words: Why Emojis Should Not satisfy the Statute of Frauds, by Moshe Berliner/ Cardozo Law Review 2020]). This is particularly true concerning a thumbs, up emoji which may convey different meanings (id., at Footnote 19, see, also, Emojis and the Law, by Eric Goldman, Washington Law Review 2018). In any event, even if such an electronic signature in the form of an emoji can create a valid contract, there still must be a meeting of the minds and an intent to be so bound (Naldi v. Grunberg, 80 A.D.3d 1, 908 N.Y.S.2d 639 [1^st Dept., 2010]).

Thus, an examination of the text messages sent between the parties is therefore necessary. The parties texts back, and forth concern deals for protective equipment, changes in prices and the fact the goods to plaintiff were never delivered. On June .22, 2020 the defendant, acknowledged, he owed the plaintiff money and offered to pay some of the funds by the beginning of July. The next day the plaintiff sent a text which stated "how do you

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expect me to be protected" (see, Text sent June. 24, 2020 included within Exhibit H to. Plaintiff's Motion [NYSCEF #43].) The defendant responded that he would not sign a “PG" for anyone, presumably referring to a personal guarantee (id). The following day the plaintiff offered to purchase goods for a certain price and that deal was rejected by the defendant. The plaintiff then texted that he was still owed significant sums. The defendant responded with numerous texts including that "have, the attorneys work it out and we. can be done" and "I can keep paying you with no written agreement'' (id). The: plaintiff asked for a personal guarantee and again the defendant refused. The plaintiff sought closure and asked the defendant to propose a resolution. The plaintiff further wrote "you won't sign an: agreement, is what your saying. So how I. can make a deal this way?" (id). The defendant responded "have your- lawyer call mine and work it out. I do not want to go back and forth" (id). More texts were sent to each other and then the plaintiff texted "are you honoring what you said without a P9?" to which the defendant responded 'I will continue to pay you as is but you give me the time to do it as you said you would" (id). The plaintiff then texted "so are you agreeing to pay me Over the next 3 months 1,475,000 but for exception, of signing a PG?" and at 5:24:12 PM the defendant responded "T am not going to sign anything but I will have you paid out within 3 months" (id.). The parties continued to

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negotiate the terms of the payment amount and schedule and finally the plaintiff sent a text summarizing the payments expected which included four payments of $368,750 on July 15, August 15, September^;15 and September 25, 2020. At 5:33:38 the same, day, the defendant responded, with a. thumbs up' emoji.

The plaintiff argues the thumbs up emoji constituted a signature of an executory accord. While the legal use of such an emoji is questionable as noted above, there are surely questions of fact whether the defendant intended to. be bound by that emoji where only nine minutes beforehand the defendant categorically asserted he would not sign any document. There are surely questions of fact whether, he ever intended to be bound by a written text message in the form of a thumbs up emoji. Therefore, this case cannot, be summarily decided on this basis.