Last year we saw in Southeastern Maritime Ltd v Trafigura Maritime Logistics Pte Ltd [2024] EWHC 255 that WhatsApp messages could be used to convey contractual information (including in this case a revocation of an offer to contract).
More recently, we have seen in two separate cases from this year that WhatsApp messages can give rise to a binding contract:
- First in April, the Technology and Construction Court found in Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) [2025] EWHC 942 (TCC) that an exchange of email and WhatsApp messages gave rise to a legally binding contract for demolition works.
- Second in August, the Court of Appeal in DAZN Ltd v Coupang Corp. [2025] [2025] EWCA Civ 1083, upheld the High Court’s decision that DAZN’s WhatsApp and email communications with Coupang amounted to a binding contract for co-exclusive broadcasting rights in South Korea for the FIFA Club World Cup 2025, even though no formal documentation was signed.
Essential takeaways and practical recommendations
These cases illustrate the risk to businesses of accidentally forming a (potentially ambiguous) binding contract when using WhatsApp (or other informal messaging channels) for business, given the relative ease with which a binding contract can be formed under English law, particularly with courts being willing to infer terms from common law and statute to fill gaps.
A detailed analysis of the legal principles for contract formation that the courts considered follows, but the immediate takeaways are:
- Courts will look at the substance, rather than the formality of the communications – informal communications such as WhatsApp can create a binding contract if the essential contractual elements are made out (offer, acceptance, consideration and intention to create legal relations).
- Courts will look at the whole course of negotiations, including informal (e.g. WhatsApp) communications and subsequent conduct, to determine whether a contract has been formed.
- For urgent agreements, courts are more likely to assume parties intended to be bound immediately and without waiting for formal contracts.
To mitigate the risks highlighted by these cases, consider these four practical tips for negotiating contracts in the digital age:
- Companies should review their policies on negotiating commercial deals over informal channels and training should be given to ensure staff understand that anything agreed in writing could create a binding legal obligation, even if it is over informal messaging channels.
- Clearly state at the outset if you do not intend to be bound until a formal contract is executed.
- Expressly state that pre-contractual negotiations do not form part of the contract by using “subject to contract” or similar language.
- In the formal agreement, ideally include an entire agreement clause and a no oral modification clause (to ensure modifications have to be made in writing and signed).
Court analysis
The legal principles for contract formation are well established - a useful summary was given by Males LJ in the Ever Given case1:
“19. In summary, it is well established that the whole course of the parties' negotiations must be considered; that it is possible for parties to conclude a binding contract even though it is understood or agreed that a formal document will follow which may include terms which have not yet been agreed; that whether this is what the parties intend to do must be determined by an objective appraisal of their words and conduct; and that the burden lies on the party asserting that such a contract has been concluded to establish that it has.
20. There are well-known formulae which can be used to make clear that parties have not yet reached the stage of a binding contract, such as 'subject to contract' or, in a maritime context, 'subject details' or 'fixed on subjects', but the absence of such terms (which were not used in the present case) is not decisive. All depends on the parties' words and conduct towards each other, considered in their context."
In Jaevee Homes Ltd v Fincham the judge agreed with the adjudicator that, whilst informal, the WhatsApp messages exchanged on 17 May 2023 evidenced and constituted a concluded contact. The issues on appeal in DAZN Ltd v Coupang Corp. were whether the informal exchanges amounted to an offer, acceptance and intention to create legal relations. The judge concluded that, in light of their WhatsApp communications, the parties intended to be immediately legally bound by the key email exchange.
The table below shows the four key legal principles considered in both cases:
| Legal principle | Analysis in DAZN Ltd v Coupang Corp. | Analysis in Jaevee Homes Ltd v Fincham | |
|---|---|---|---|
| 1. | Look at the whole context The Court should look at the whole context of the parties negotiations2 (both before and after the alleged contract formation). Subsequent communications showing that the parties consider themselves to have made a binding agreement (notwithstanding that further terms or documents remain to be agreed or executed) are powerful evidence that a binding contract has been made. |
| The Claimant attempted to incorporate its standard terms via a sub-contract sent to the Defendant a few days later on 26 May 2023, however the judge dismissed the Claimant’s “battle of the forms” argument. As there was no express indication that the final terms of the agreement depended upon incorporating the Claimant's standard terms. |
| 2. | Are all essential terms there? Where the parties agree there will be a subsequent formal written contract, if all the essential contractual terms have been agreed, a court may consider the agreement to be contractually binding before the formal contract is signed.3 | The court dismissed DAZN’s argument that the agreement was subject to a formally drafted contract because:
| The judge disagreed with the Claimant’s arguments that the essential terms were not agreed stating that the contracting party, scope, start date, price and payment terms were clear. But regardless, the judge considered the duration of the contract works, the start date, and payment terms were not essential terms of the contract, so a concluded contract could still exist even if they weren’t agreed by relying on common law and statute to fill in the gaps. |
| 3. | Substance over form Communications between business people conducting commercial negotiations must be interpreted by their substance and intent since they are not precisely legally drafted. | Given the author's non-native English, the court looked at substance over precise wording, concluding the sense of Coupang’s email is that it conveyed a formal contractual offer. | The WhatsApp messages exchanged on 17 May 2023 evidenced a concluded contact: [17/05/2023, 17:43:15] Steve Fincham: Ben Are we saying it's my job mate so I can start getting organised mate [17/05/2023, 20:06:42] Ben James: Yes. The contract was concluded by the exchange a few minutes later agreeing the payment terms: [17/05/2023, 20:06:51] Ben James: Monthly applications [17/05/2023, 20:11:50] Steve Fincham: Are you saying every 28 or 30 days from invoice that's a yes not on draw downs then good … call you at 8.30 mate Thanks mate appreciated Ben [17/05/2023, 20:12:12] Ben James: Ok. |
| 4. | Urgency can imply intent When an agreement is urgent, parties are more likely to intend to be bound by their negotiations despite outstanding details or a lack of a formal contract. | DAZN actively encouraged Coupang to start marketing without wating for the long form agreement, yet there was no urgency about the contract drafting process despite it being time-sensitive. |
Footnotes
[1] Smit Salvage BV v Luster Maritime SA (The Ever Given) [2024] EWCA Civ 260 [2024] 2 All E.R. (Comm) 504 | [2024] 2 Lloyd's Rep. 86
[2] Global Asset Capital Inc v Aabar Block Sarl [2017] EWCA Civ 37, [2017] 4 WLR 163
[3] Immingham Storage Company v Clear Plc [2011] EWCA Civ 89, 135 Con LR 224
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