Picture a property owner who is seeking to rent an apartment
(see below, to be clear).
A prospective renter checks out the place.
She sends very positive text messages (see lead picture above …
the case arose in Israel, hence Hebrew text).
However, she does not commit to renting. Uh-oh. Now the landlord sues her for backing out of her emojified (new word, folks) promise to rent.
Did her text message convey acceptance of the offer
to rent?
No, according to the small claims court. The judge
reasoned (worth reading!):
This is the place to refer once again to those graphic symbols
(icons) sent by Defendant 2 to the Plaintiff. As stated, they do not, under the
circumstances, indicate that the negotiations between the parties have matured
into a binding agreement. However, the sent symbols support the conclusion that
the defendants acted in bad faith.
Indeed, this negotiation’s parties’ ways of expression may
take on different forms, and today, in modern times, the use of the “emoji”
icons may also have a meaning that indicates the good faith of the side to the
negotiations. The [emoji laden] text message sent by Defendant 2 on June 5,
2016, was accompanied by quite a few symbols, as mentioned. These included a
“smiley”, a bottle of champagne, dancing figures and more. These icons convey
great optimism.
Although this message did not constitute a binding contract
between the parties, this message naturally led to the Plaintiff’s great
reliance on the defendants’ desire to rent his apartment. As a result, the
Plaintiff removed his online ad about renting his apartment. Even towards the
end of the negotiations, in the same text messages sent at the end of July,
Defendant 2 used “smiley” symbols.
These symbols, which convey to the other
side that everything is in order, were misleading, since at that time the
defendants already had great doubts as to their desire to rent the apartment.
The combination of these – the festive icons at the beginning
of the negotiations, which created much reliance with the prosecutor, and those
smileys at the end of the negotiations, which misled the Plaintiff to think the
defendants were still interested in his apartment – support the conclusion that
the defendants acted in bad faith in the negotiations.
Even if I assume that the reason for the withdrawal from the
negotiations was justified, the defendants should have notified the Plaintiff
on 8 July, 2016 that they are not sure of their desire to rent the apartment,
and that the Plaintiff should consider his steps accordingly. The defendants
“dragged” the Plaintiff, “lulled” him, until he found himself close to the
beginning of the lease period without having found a renter.
Credit to my former student, Annalisa, for calling this
situation to my attention, and to Prof. Eric Goldman and his blog, which
credits his former student, Gabriella, for an emoji lead.
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