Key takeaways
Informal messaging can create legal commitments
WhatsApp exchanges were deemed sufficient to form a binding contract.
Courts prioritise intent over formalities in agreements
Focus remains on the parties’ true intentions rather than the communication method.
Businesses should review digital communication practices
Clear policies help prevent unintended agreements through casual messages.
Jaevee Homes Ltd -v- Fincham (t/a as Fincham Demolition) [2025] EWHC 942 (TCC)
Under English law, a binding contract is formed where there is: offer; acceptance, consideration; certainty of terms; and an intention to create legal relations. Contracts can be made orally, via an exchange of correspondence, or they can arise as a result of the parties’ conduct.
This is a distinguishing feature of English law, in contrast to continental legal systems in Europe and parts of Asia (e.g., France, Germany, South Korea, and Japan), where a written contract signed by the parties is generally required for the agreement to be legally binding and enforceable.
No one questions that email exchanges (e.g., CP recap by email correspondence) can lead to binding contracts, provided that the parties intend to be bound, and the exchanges satisfy the requirements for contract formation. In this recent case, however, a dispute arose as to whether informal WhatsApp exchanges constituted a concluded contract between the parties. The High Court decided that they did.
The background facts
In April 2023, the claimant developer, Jaevee Homes Ltd, approached the defendant contractor, Ben Fincham trading as Fincham Demolition, to perform demolition works at a particular site. The contractor visited the site to discuss the works and then, on 2 and 3 May 2023, the developer emailed the contractor with further specifications for the work and asking the contractor for a price.
On 11 May 2023, the contractor provided a written quotation with a final fixed price. On 12 May 2023, the contractor exchanged emails with the developer’s CEO, Ben James, with regard to the time it would take to do the works. On 12 May, they discussed the quotation via WhatsApp and haggled over the price but came to no agreement.
On 13 to 16 May 2023, the WhatsApp exchanges continued as to whether the contractor would get the job. The contractor reduced its quoted price somewhat. The developer’s CEO indicated he was still waiting for another tender.
On 16 May, the sequence of works was discussed by email. On 17 May, there were WhatsApp exchanges, part of which read as follows:
[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
…
[17/05/2023, 20:12:12] Ben James: Ok
[17/05/2023, 20:12:16] Ben James: Chat in the am
[17/05/2023, 20:17:49] Steve Fincham: Thanks Ben"
On 26 May, the developer emailed the contractor a zip file of documents that included:
A purchase order dated 26 May in the developer’s name.
A short form sub-contract dated 22 May which named the parties as the claimant developer and Fincham Demolition, the contractor’s trading name and which provided for a contract sum reflecting the developer’s reduced quote.
The demolition work stated on 30 May 2023. However, an issue subsequently arose with regard to the contractor’s invoices and the parties fell into dispute with regard to the amount of work that had been done and the sums due.
The dispute was referred to adjudication.
Adjudication proceedings
One of the issues that arose in the adjudication proceedings was when the parties’ contract was formed and on what terms.
The developer argued that the contract comprised the documents that it sent on 26 May, which were accepted by the contractor commencing the works on 30 May. The contractor maintained that the contract was agreed by an exchange of WhatsApp messages on 17 May.
The adjudicator found that the contract was concluded by the exchange of WhatsApp messages on 17 May 2023. Those messages could not be interpreted as pre-contractual negotiations. The adjudicator stated that, as the contract was formed on 17 May, the documents sent thereafter, including the short form sub-contract, were irrelevant.
The developer appealed this decision to the Court.
The High Court decision
Among other issues, the Court revisited the question of when the parties’ agreement was concluded. The Court agreed with the adjudicator that, while informal, the WhatsApp messages on 17 May evidenced and constituted a concluded contract.
The Court dismissed the developer’s argument that essential terms were not agreed in those exchanges, thereby preventing the formation of a binding contract. None of the matters raised by the developer taken on its own led to the conclusion that no contract was concluded on 17 May.
The Court found as follows:
The parties intended that the works should be started as soon as possible, and had agreed when the contractor would come to site;
The scope of the works had been agreed;
A price had been agreed;
There was no express indication that the final terms of the agreement between the parties depended upon agreement as to any other matter such as incorporation of the developer’s standard terms of contract;
The following WhatsApp exchange was indicative of a concluded agreement:
[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;Terms of payment had been agreed;
There was an agreement as to timing of payment.
The contract having already been concluded on 17 May via WhatsApp exchanges, the Court stated that the developer’s subcontract terms that were subsequently sent by email to the contractor were not incorporated into the contract.
Comment
While this was a construction dispute, it provides a salutary lesson for those in the shipping and commodities sectors, where transactions and business are often conducted via an informal medium (e.g. WhatsApp, KakaoTalk in South Korea and Line in Japan).
Those engaging in oral or WhatsApp (KakaoTalk, and Line) exchanges with commercial counterparties should remain alert to the fact that such exchanges may lead to a binding agreement if they satisfy the requirements for valid contract formation.
Finally, the “last shot” rule in a “battle of the forms” will not assist where the Court finds, as here, that the contract had already been concluded before one of the parties sought to fire its “last shot”, in this case the short form sub-contract.