Emoticons and Precontract Liability.

Emoticons or emoji, also known as smileys, are stylized reproductions of facial expressions. The word "emoticon" is a new made-up expression of the English terms "emotion" and "icon", and it is used to designate a small image reproducing our most common feelings. By now, however, emoticons, originally made of typical smile, laughs, tears, and scowl, has expanded and includes symbols and images of various kinds. These images, mainly used on the internet and in text messages to add extra-verbal components to written communications, have become so common that they are considered a new digital language.

Recently in Israel a curious fact occurred: a landlord successfully sued a couple of guy who misled him by writing an emoji message. More precisely, the landlord, Yaniv Dahan, published an ad for renting his house on an real estate webpage and a couple responded, according to the court, making a statement of intent to the conclusion of a contract. Indeed, after the young couple responded to the ad, the landlord deleted his ad but the couple stopped responding to him showing no more interest in renting the apartment. 

The matter whether there was a sort of pre-contract liability was then brought in front of the judges who considered, among the evidence used against the defendants, the text written in response to the ad, containing  images depicting various expressions and objects, from the "v" gesture of the fingers to a bottle of champagne.

The judge ruled in favour of Mr. Dahan, ordering the couple to pay about $ 2,000 as compensation for pre-contract liability. In particular, the court motivated its decision by explaining how the emoji used by the couple, including the bottle and the ballerina, indicated optimism and positivity, and hence the intention to enter into a contract. Although this message was not a binding contract between the parties, according to the court the message they wrote was enough to create a legitimate expectations that a further agreement would be concluded.

Certainly, and this is a very common experience, emoticons are intuitive and perceptive symbols, as they express a feeling or reference that would be difficult to translate in words, and that, above all, it would take longer time to be written extensively with the letters.

However, there is the question of whether the cute gifs as well as simplify and clear ambiguities by clarifying a concept have not replaced a good part of feelings, or rather the will to express them, making virtual communication lighter and more unconscious and therefore less representative of the actual individual’s will.

So far, this ruling is an isolated case, but we definitely have to reflect on this issue and, in the meantime, also to be careful to what we write ;-).