AKEEM LOPEZ

In­stant mes­sag­ing and so­cial me­dia plat­forms such as What­sApp, Face­book, Mes­sen­ger and In­sta­gram are sta­ples of mod­ern life and the use of these plat­forms has been the sub­ject of many ju­di­cial de­ci­sions rang­ing from mat­ters of defama­tion to con­tract for­ma­tion. This ar­ti­cle aims to pro­vide an overview of the re­cent Eng­lish High Court de­ci­sion in Jaevee Homes Ltd v Fin­cham (trad­ing as Fin­cham De­mo­li­tion) [2025] EWHC 942 (TCC) (‘Jaevee Homes’) where it was held that a valid con­tract was con­clud­ed by cer­tain What­sApp ex­changes in­stead of by a for­malised sub­con­tract sub­mit­ted lat­er on.

In Jaevee Homes, Jaevee ap­proached Fin­cham to car­ry out de­mo­li­tion works on an old night­club. Af­ter vis­it­ing the site, Fin­cham pro­vid­ed a writ­ten quo­ta­tion for de­mo­li­tion works for a cu­mu­la­tive sum £256,000 plus VAT. Jaevee’s CEO, James, reached out to Fin­cham via email (us­ing an email ad­dress be­long­ing to a dif­fer­ent com­pa­ny) ask­ing whether the works could be com­plet­ed with­in eight weeks to which Fin­cham replied that the works would take at least twelve weeks to com­plete. Be­gin­ning on May 12, 2023, James and Fin­cham com­mu­ni­cat­ed via What­sApp re­gard­ing the quot­ed price. In an at­tempt to stay com­pet­i­tive, Fin­cham pro­posed a re­duced price of £248,000.

On May 17, 2023, the for­ma­tive What­sApp con­ver­sa­tion oc­curred. Fin­cham asked whether the job was his and James re­quest­ed that he start on Mon­day (May 22, 2023). Fin­cham re­spond­ed in­di­cat­ing that prepara­to­ry scaf­fold­ing works can com­mence on Mon­day, but work­ers will start the fol­low­ing Mon­day (May 29, 2023). A few min­utes lat­er, Fin­cham sent a fol­low up mes­sage which read “Are we say­ing it’s my job mate so I can start get­ting or­gan­ised mate” to which James re­spond­ed “Yes”, “Month­ly ap­pli­ca­tions”. Fin­cham clar­i­fied that he would be seek­ing pay­ment 28-30 days from the is­suance of an in­voice and not based on Jaevee ac­cess­ing draw­down fa­cil­i­ties. Fin­cham’s mes­sage end­ed “call you at 8:30 mate Thanks mate ap­pre­ci­at­ed.” James’ re­sponse was “Ok” “Chat in the am.”

On May 26 2023, an em­ploy­ee of Jaevee sent an email con­tain­ing a sub­con­tract which list­ed Jaevee and Fin­cham De­mo­li­tion (Fin­cham’s trad­ing name) as the con­tract­ing par­ties. The sub­con­tract con­tained pay­ment terms dif­fer­ent to those con­tained in the What­sApp ex­changes. Fin­cham nei­ther ac­knowl­edged re­ceipt of that email nor signed the en­closed sub­con­tract.

Fin­cham com­menced work on May 30, 2023. Through June 9, 2023 to Ju­ly 27, 2023, Fin­cham is­sued four in­voic­es to­talling £195,857.50 plus VAT. Jaevee paid an ag­gre­gate of £80,000 over sev­er­al pay­ments. The par­ties fell in­to a dis­pute on the sums due for the work done and Jaevee pur­port­ed to ter­mi­nate any agree­ment be­tween them.

Fin­cham ini­ti­at­ed ad­ju­di­ca­tion pro­ceed­ings in which the ad­ju­di­ca­tor de­cid­ed that (i) a valid con­tract was con­clud­ed via the What­sApp ex­changes for an agreed sum of £248,000; (ii) the par­ties agreed, by the What­sApp ex­changes, that in­voic­es would be paid with­in 28-30 days of be­ing is­sued; and (iii) the doc­u­ments sent by email were ir­rel­e­vant to the for­ma­tion of a con­tract (which was al­ready con­clud­ed by the What­sApp ex­changes). The ad­ju­di­ca­tor ac­cord­ing­ly or­dered Jaevee to pay a to­tal of £145,896.31.

Jaevee failed to pay the sums or­dered to be paid by the ad­ju­di­ca­tor and Fin­cham ini­ti­at­ed en­force­ment pro­ceed­ings and suc­ceed­ed. Jaevee did not pay the out­stand­ing sums and in­stead ini­ti­at­ed cer­tain sim­pli­fied pro­ceed­ings un­der the Eng­lish CPR. Jaevee sought de­c­la­ra­tions that Fin­cham agreed to car­ry out the de­mo­li­tion works pur­suant to the for­malised sub­con­tract; or, al­ter­na­tive­ly, that Fin­cham agreed to car­ry out the de­mo­li­tion works pur­suant to a ba­sic con­tract formed via What­sApp ex­changes which in­clud­ed a re­quire­ment that Fin­cham is­sue re­quests for pay­ment month­ly; and that the four in­voic­es did not con­sti­tute valid pay­ment ap­pli­ca­tions un­der Eng­lish con­struc­tion leg­is­la­tion. It was held that the ex­change of What­sApp mes­sages, though in­for­mal, ev­i­denced and con­sti­tut­ed a con­clud­ed con­tract. The Court rea­soned that the par­ties in­tend­ed that the works would be start­ed as soon as pos­si­ble, the scope of works was agreed, a price was agreed up­on, there was no ex­press in­di­ca­tion that the fi­nal terms of the agree­ment was sub­ject to con­tract or oth­er­wise de­pend­ed up­on the in­cor­po­ra­tion of Jaevee’s stan­dard terms. The Court thus grant­ed a de­c­la­ra­tion that Jaevee en­gaged Fin­cham to car­ry out the de­mo­li­tion works pur­suant to a ba­sic con­tract formed by the ex­change of emails and What­sApp mes­sages and, as part of this ba­sic con­tract, Fin­cham was en­ti­tled to is­sue month­ly ap­pli­ca­tions for pay­ment which Jaevee would have to pay with­in 28-30 days of such ap­pli­ca­tion.

Al­though Jaevee Homes was de­cid­ed with­in the con­text of a con­struc­tion law dis­pute, this de­ci­sion re­in­forces re­cent ju­di­cial trends on con­tract for­ma­tion and demon­strates the im­pact of mod­ern tech­nol­o­gy use and its im­pli­ca­tions in the busi­ness world. For ex­am­ple, a Cana­di­an court has pre­vi­ous­ly ruled that a ‘thumbs up’ emo­ji was a valid means of ac­cept­ing the terms of a con­tract (dis­cussed fur­ther here: https://trinidad­law.com/watch-what-you-say-or-emo­ji-con­tract-for­ma­tion-in-the-mod­ern-age/).

Lo­cal courts have not yet frontal­ly ad­dressed whether a valid com­mer­cial con­tract can be con­clud­ed via What­sApp (or any oth­er so­cial me­dia plat­form). Nonethe­less, there is lit­tle rea­son to doubt that a lo­cal court would not so hold once the sur­round­ing cir­cum­stances per­mit and the es­sen­tial el­e­ments of a con­tract are present (ie of­fer, ac­cep­tance, con­sid­er­a­tion and in­ten­tion to cre­ate le­gal re­la­tions).

It would there­fore be in­cum­bent up­on busi­nessper­sons to en­sure care­ful use of in­stant mes­sag­ing and so­cial me­dia plat­forms to avoid seem­ing­ly in­no­cent com­mu­ni­ca­tions bind­ing them to firm con­trac­tu­al com­mit­ments. To avoid such sit­u­a­tions, in­clud­ing as oc­curred in Jaevee Homes, per­sons ne­go­ti­at­ing en­try in­to a con­tract may wish to ex­press­ly la­bel all pre­lim­i­nary com­mu­ni­ca­tions as be­ing ‘SUB­JECT TO CON­TRACT’ and then en­sure that all dis­cussed terms are clar­i­fied in a for­malised writ­ten agree­ment pre­pared by com­pe­tent at­tor­neys-at-law and signed by all par­ties be­fore per­for­mance is car­ried out.