Creating Contract by WhatsApp - Notices too.
Written by David Smith - 30th May 2028
A recent decision in the Technology and Construction Court has held that an exchange of WhatsApp messages is sufficient to create a contract. This is likely to have far-reaching consequences.
In the case a developer hired a demolition contractor to carry out demolition works at a site they were proposing to redevelop. That contractor was not paid and took action against the developer. The developer then sought to argue that the contractor had not properly complied with the construction contract and had submitted its bills improperly and so they were not due for payment. The question then came down to what the contract between the parties actually was. This is a pretty common dispute in construction matters and indeed there is an entire statutory scheme, under the Housing, Grants, Construction, and Regeneration Act (HGCRA) which provides for gaps in contracts to be filled in with standard terms and also provides an adjudication scheme to resolve disputes.
The formation of the contract is quite involved and important. The initial contract terms were set out in an email exchange which included a full written quotation. There was further email discussions about the works and timing. This exchange then moved to WhatsApp with a discussion of price. There was another email exchange regarding sequencing of works and then the exchange moved back to WhatsApp again. Crucially this final exchange included two specific messages reading "Are we saying it's my job mate..." followed a few hours later by "Yes". A letter message regarding invoicing also stated "Are you saying every 28 or 30 days from invoice..." which was responded to with "Ok". The developer's quantity surveyor emailed the demolition contractor a few days later with a series of documents including a standard sub-contract for the works. This provided for monthly interim payments to the sub-contractor based on an invoicing structure. It can be immediately seen here that there is a slight difference between the WhatsApp exchange where there is appears to be an agreement to pay within 28 or 30 days after Invoice and the sub-contract which actually specified payment in 7 days but based on an invoice every month.
Almost inevitably things went wrong pretty quickly. The demolition contractor submitted two invoices totalling over £100,000 within the first month. Ultimately the demolition contractor went largely unpaid and sought adjudication through the HGCRA. This went up to enforcement proceedings through the courts. Those proceedings were then cut across by an application from the developer for a finding that the WhatsApp exchanges were not the contract and this was in fact the sub-contract or alternatively that the WhatsApp exchanges meant much the same as the sub-contract later said regarding payment terms.
Ultimately the parties agreed that there was an exchange of WhatsApp messages but differed somewhat on what those messages were actually doing. The developer argued that the exchange of WhatsApp messages was nothing more than a notification that the demolition contractor had won the contract and there was not sufficient there to allow for a contract to be formed. That came later when the terms were emailed. The demolition contractor argued the opposite and stated that the WhatsApp exchange was sufficient on its own to form the contract.
Ultimately the court did not agree. It looked at the exchanges leading up to the final WhatsApp exchange and held that these set out the basis of the contract and the WhatsApp exchange was the final bit that got it over the line. The various things that the developer said were missing were either set out in the previous emails that the WhatsApp exchange agreed to or were not necessary.
I had rather expected a decision of this type. It had already been held that relatively informal email exchanges could create a contract if there was enough in them to infer the terms of an agreement. Additionally, in Canada, the Saskatchewan Court of Appeal, held in 2024 that an exchange of WhatsApp messaged including an emoji could give rise to a contract if the circumstances were right. So it seemed likely that the English Courts would adopt a similar view.
This has significant consequences. First, care needs to be taken in regard to WhatsApp messages to ensure that it is clear that any agreement is pending a full written contract.
Secondly, this is also relevant to letting agents and landlords in the new world of the Renters' Rights Bill. The RRB allows tenants to give notice by any means as long as it is in writing. I have been concerned that this would include notice by WhatsApp. The fact that the Courts will accept a contract being formed by WhatsApp increases my concern that they will also accept a notice being given in the same way.