LEGAL CHANGE

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A recent case

In the 2025 English law judgment of Jaevee Homes Ltd v Fincham [2025] EWHC 942 (TCC), the Technology and Construction Court held that a contract can be concluded via the use of messages on the messaging system, WhatsApp.

WhatsApp, Signal and other messaging apps have become a common way of communicating over the last decade, as they offer speedy and effective ways of conversing and transferring information.

However, as this judgment demonstrates, the fact that a messaging app provides a relatively informal means of communication, does not mean that what you say on a messaging app will not lead to an unwanted contract (or make an undesired change to an existing one).

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Back to basics

Contracts have four key basic components:

• An offer and acceptance of that offer;
• Certainty of terms;
• Consideration (for example, payment of a specified amount); and
• An intention to create a legal relationship.

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Are you giving yourself enough space for clear thought?

The informality that messaging apps provide and the speed at which exchange of messages can happen, often leaves very little time for considered thought. In particular, on whether what you are saying in a message might fall into any of the above four components.

Furthermore, the risk of concluding or changing a contract may be increased, if what an exchange of messages says refers to previous communication or documentation on the same subject matter (for example in an email chain).

Time pressures may also lead to a switch from e-mail communication to messaging app communication, further increasing the risk of reaching an unintended agreement via messaging.

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Back-pedalling may prove to be impossible

Unfortunately, as this judgment shows, it is often only after the event that the net effect of what has been said in communication gets scrutinised. And once a message has been sent, if the legal effect results in a contract, it may be difficult, if not impossible to claw things back.

So how can businesses look to protect themselves against concluding or changing agreements via messaging apps?

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Clear policies

As with any area of legal risk, clear and easy to understand policies can help people to avoid the potential risks. Parameters could for example, include:

• Bans on the use of messaging apps for business communication with clients or prospective clients (or clear parameters around when it is acceptable to use them and on what terms);
• If using messaging apps, making it clear at the outset that all messaging app communications are subject to contract, so that formal contracts can be properly negotiated and put in place separately;
• When putting new contracts in place, making it clear in the contract that future communications and notices (for example, communication of changes to reporting requirements, amendments, consents and waivers) are to be dealt with only via formal communication channels (for example signed communications or via designated senior personnel email addresses), so that this can at least turn minds to the importance of what is being communicated and agreed.

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Don’t forget all other things electronic….

Whilst this article highlights the risks that contracts may be concluded or changed via a messaging app, it is important to remember that using any electronic mail, messaging or platform system through which messages can be relayed between different persons could inadvertently result in contracts being concluded or changed.

Therefore, it is always worth considering covering these in relevant internal policies, to ensure that innocent messages or posts do not lead to unintended liability…..and signalling a reminder of your policies at suitably regular intervals.

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