Keeping promises is fundamental. However, you will need documentary evidence that can be proven in court in case one side attempts betrayal.
But does a casual social media chat count as a contract? This is an issue that is being discussed all over the world. The High Court of Uganda recently ruled that promises sent by text via WhatsApp are contracts.
A Canadian court ruled that the thumbs-up emoji could also be included. But in South Africa, a woman who tried to claim the lottery prize promised in a WhatsApp message returned empty-handed.
Its implications extend beyond national boundaries and affect legal discussions on an international scale.
The case decided by Uganda's High Court in January concerned whether contracts concluded through WhatsApp messages could be considered legally binding.
The case brought by Dr Rodney Mugarura against Paramount Hospital Kampala Limited and its director Dr Simon Begumisa has set a precedent for the evolving nature of contracts in the digital age.
Holding on to someone you made a promise to through text
Mugarura's claim stemmed from unpaid professional fees totaling UGX 41.5 million (approximately $10,600) from surgeries he performed pursuant to a contract entered into via WhatsApp.
According to the surgeon, Begumisa approached him through WhatsApp in 2019, explaining that the hospital needed his expertise.
“The hospital has many departments, including orthopedics,” the director told Mugarura. “We work with many surgeons who have been granted surgical rights and professional billing rights.” It was then agreed that Mugarura would work on similar terms.
Under the agreement, Mugarura will be billed “for his professional fees, surgical implants used in the surgery or other services.” [he] We will provide this in the course of caring for our patients.”
But despite repeated requests, Mr Mugarura said the hospital and its director had not paid him.
Statutes and Text Messages
Justice Patricia Kahigi Asiimwe examined the law on electronic communications and contract validity.
She cited a section of Ugandan contract law. “Contracts are in writing. In the form of data messages; accessible in a way that can be used for subsequent reference, or else verbally.”
She also said that under the provisions of the Ugandan law on electronic transactions, “data” means any form of electronic representation of information and “data message” means “data generated, transmitted, received or stored by computer means and includes: a) voice (if voice is used in automated transactions) and (b) stored records.”
So is the smartphone used for WhatsApp a computer?
Under the Electronic Transactions Act, Justice Asiimwe ruled that a computer is “an electronic, magnetic, optical, electrochemical or other data processing device or group of interconnected or related devices that performs logical, arithmetic or storage functions.”
So it seemed pretty clear.
“In my view, the above definition also includes cell phones,” she ruled. “The court finds that there was a valid contract between the plaintiff and the defendant.”
a few words contract
Paramount Hospital was ordered to pay Mugarura the outstanding fees with 20% interest from the start of the proceedings in 2021.
Legal experts welcomed the decision, saying it ensures the law remains relevant in today's evolving digital environment.
Pheona Nabasa Wall of Ugandan law firm Nabasa & Company Advocates said it reflects the reality of modern life.
“WhatsApp has become a widely used platform for business and personal communication and a common medium for negotiations and agreements,” Wall said. “Recognizing the contracts formed through WhatsApp messages is consistent with the way people conduct business and interact in the modern world.”
But Wall heard a word of warning. “It is important for individuals and businesses to keep clear records of conversations and agreements,” she said. “You may need to implement appropriate documentation and record-keeping practices to avoid misunderstandings or disputes later.”
Esther Akol, who works full-time as a virtual assistant in Uganda, agreed.
“Ensuring all parties fully understand and agree to the terms communicated via WhatsApp can be a potential challenge,” Akol said. “Companies may also have difficulty proving the authenticity of messages in the event of a dispute.”
Contract law has evolved over time.
Akol reminded us of the history of contract formation. “At first, surprisingly, there was still word of mouth finding the place,” she said. But those who realized that verbal agreements needed to be backed by concrete evidence soon began making things more tangible.
Someone, perhaps a local leader, will witness the agreement. “Proper documentation requires writing on paper and getting a physical signature,” she said. “Lawyers now play a pivotal role, providing guidance in contract drafting, facilitating legal compliance, and increasing understanding of rights and obligations.”
Wall said clear documentation of contracts remains important to Ugandans. She pointed out that huge sums of money are tied up in corporate dispute cases every year.
Akol advises clients entering into contracts to keep five key points in mind: “clear communication, documentary evidence, legal advice, privacy considerations and policy enforcement.”
The importance of clear intent and mutual consent was highlighted in a 2019 South African case involving an exchange on WhatsApp.
Promises must be clear.
In South Africa, Ntsieni Morris Kgopana won a significant sum in the National Lottery and sent a message to Mohlaki Rosina Matlala, the mother of one of his children, discussing a hypothetical distribution of his winnings.
Kgopana texted: “If we get 20m, we can give 1m to every child and leave 13m. I’m going to stay home and not drive back and forth to bid.”
However, the South African Court of Appeal dismissed the case on the grounds that the messages described potential future actions rather than current intentions and lacked the clarity and certainty needed for a legally binding agreement. Moreover, the court said Matlala did not respond to the messages.
Last year in Canada, a judge ruled that the 'thumbs up' emoji carries the same weight as a signature.
There, a farmer used an emoji to confirm a WhatsApp contract but later found himself liable for damages after failing to honor the terms of his business deal with the other party.
The judge argued that courts must adapt to the evolving ways of communicating in modern society.
So, while the devil may be in the details of any agreement, it's the content of the chat that becomes binding.