Summary
An interesting new case found its way through the Technology & Construction Court in April this year, where it was held that WhatsApp exchanges could form a binding commercial contract, even where a formal agreement followed but was never acknowledged nor signed.
“In my judgment, the exchange of WhatsApp messages, whilst informal, evidenced and constituted a concluded contract” – Deputy Judge Roger Ter Haar KC in his judgment in Jaevee Homes Ltd v Fincham (trading as Fincham Demolition) [2025] EWHC 942 (TCC).
Where essential terms had been agreed in an exchange of informal messages, it was determined that this constituted an executed contract. There was inevitably some debate as to whether all the key terms of the construction contract had been agreed and what other terms could be implied where they did not appear in the threads, but the finding by the TCC judge was clear that a contract had been formulated.
We appreciate that parties are busy and there can be little or no time for a formal contract to be drafted. We acknowledge that WhatsApp is frequently being used because it is quick and easy, so why wait to draw up a contract when you can get cracking with what you need to do?
Is this good news?
It can be very good news for any business sector if contracts can be negotiated and agreed through messaging mediums, but this will very much depend on the content of the messages. The case in question involved the construction sector, where it is becoming common practice for agreements to be reached over WhatsApp and not by way of formal written contracts, particularly for smaller or lower value contracts. This judgment therefore gives some reassurances and certainty that if, for example, the paying party fails to pay for the contract works, where messages agreed the scope of the works and the cost, those messages could be considered an enforceable contract upon which legal action could be taken.
This may be especially useful where there is some urgency as to the commencement of the works or delivery of the goods and/or services. The parties can gain some comfort that rather than facing delays in start, procurement or delivery dates, contracts can be simply formed by WhatsApp messages thus removing the risk of there being no enforceable contract in place.
Are there any pitfalls?
It will come as no surprise that there are downsides to using WhatsApp as a platform for contract creation, and these primarily arise from the notion of ambiguity. The informality of WhatsApp messages (or any messages exchanged over similar mediums) often leads to ambiguity. Ambiguity can in turn lead to a ‘no contract scenario’, or an unintended contract with the need for the court to imply terms (if possible and appropriate), where such essential terms are disputed. These implied terms may not be what either contracting parties intended to be reflected in the agreement and, consequently, this unpredictability can frequently have unpleasant costs implications for contracting parties.
Further, to give legal efficacy to a contract, ancillary documents may need to be considered, understood and appended to the WhatsApp thread. Take for example a WhatsApp message that references the standard terms and conditions of one of the parties but does not attach the same. Informal messages often do not discuss what happens if something goes wrong in the performance of the contract and subsequent termination. In such a scenario, the likelihood is that the standard terms and conditions will not have been incorporated into the contract and should one party wish to end the contract there may be no mechanism to do so, leaving the parties frustrated and unsure as to how to proceed, increasing the prospect of a contentious and possibly protracted dispute.
As you can see, there are a lot of “unknowns” in endeavouring to form contracts in this manner. Without clear, defined terms and conditions, there is always a risk of you being left with a contract that (1) may not state what you intended, rendering it unfit for purpose or potentially oppressive or (2) is not a contract at all. In either case, the prospect of a dispute arising and litigation ensuing increases.
Best practice
Somewhat predictably, we are bound to advise that the benefits of drawing up a formal contract outweigh the risks of not having one. Even if initial communications and negotiations feature in WhatsApp messages, we would always advocate following up and executing any agreement reached over WhatsApp in a formally drafted contract. This creates certainty and affords the protection you need in any given commercial contract negotiation.
No one expects to face a contractual dispute when entering into a contract, but unfortunately it does happen. It is therefore better to have the protection in place to avoid expensive, time consuming, and often stressful and unnecessary litigation.
Weightmans’ Commercial and Construction teams have extensive experience in drafting contracts, and we are here to help so please do get in touch with us.
