WHATSAPP MESSAGES AND CONTRACT FORMATION
Can a WhatsApp exchange be sufficient to form a construction contract? If so, how would such a WhatsApp exchange look like? In this blog, we take a look at the case of Jaevee Homes Ltd v Fincham [2025] EWHC 942 (TCC) which deals with this rather interesting issue.
A Brief Background. The Claimant was a property developer, and the Defendant was a demolition contractor (Judgment [13]). The Claimant was developing a site in Norwich and approached the Defendant in early 2023 to perform demolition works (Judgment [14]).
The Defendant provided a written quotation on 11 May 2023 for the sum of £256,000 plus VAT (Judgment [15]). Between 12 May 2023 to 16 May 2023, the Parties exchanged emails and WhatsApp messages discussing issues such as price, time for completing the works, and the sequence of works (Judgment [17] – [20]).
And crucially, on 17 May 2023, the Defendant and the Claimant’s CEO, Mr. Ben James, had the following WhatsApp exchange (Judgment [21]):
“[17/05/2023, 16:34:43] Steve Fincham: Hi Ben How did you get on mate is the job mine mate
[17/05/2023, 16:38:32] Ben James: Can you start on Monday?
[17/05/2023, 16:55:06] Steve Fincham: I can start with getting the scaffolding sorted and stuff on Monday mate but men will start the following Monday Tom needs to get the scaffolders there on Monday too mate to alter the scaffolding with ladder beams above the door way and make gates into the hoarding to get the equipment in He will know what we are talking about mate Appreciate this work I really do Ben
[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, 20:06:51] Ben James: Monthly applications
[17/05/2023, 20:11:50] Steve Fincham: Are you saying every 28 or 30 days from invoice that's a yes not on draw downs then good d) call you at 8.30 mate Thanks mate appreciated Ben
[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 2023, the senior quantity surveyor of the Claimant emailed the Defendant enclosing a zip file containing a purchase order, a Short Form Subcontract, and a marked-up ground floor plan of the works (Judgment [23] – [24]). On 30 May 2023, the Defendant commenced demolition works (Judgment [27]).
Disputes arose between the Parties, and eventually the matter came before the English Technology and Construction Court (the “Court”). A key question that arose for consideration by the Court was this: was the contract formed on 17 May 2023 via the WhatsApp exchange?
The Argument against a Contract formed via WhatsApp. The Claimant argued that the WhatsApp exchange did not form a contract (Judgment [79]). Among others, the Claimant argued that:
There was no consensus that was reached on the duration of the works.
It was unclear what was the start date for the works.
Payment terms had not been agreed.
The works amounted to a quarter million pounds, so one would have expected a written agreement.
The normal practice in the construction industry meant that Mr. Ben James’ messages was a confirmation of a successful tender, rather than a concluded agreement.
Essential terms had not been agreed.
In short, the Claimant’s point was that the WhatsApp messages could not have amounted to the conclusion of a contract between the Parties as key essential terms had not been concluded.
What the Court found. The Court disagreed, finding that “… the exchange of WhatsApp messages, whilst informal, evidenced and constituted a concluded contract” (Judgment [81]).
The Court made the following findings:
Judgment [87]: The Court held that agreement as to duration was not an essential term as absent express agreement, “there is an implied term that the contractor will complete within a reasonable period.”
Judgment [88]: The Court found that even if a start date had not been agreed, it was not an essential term.
Judgment [89]: The Court stated that absence of payment terms is “not antithetical to the existence of a concluded contract” and observed that “an important target of the 1996 Act is to fill the gap if a contract does not contain appropriate payment terms.”
The Court also noted at Judgment [91] that the scope of works had been agreed, and the price had been agreed, and “[t]here 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 Claimant's standard terms of contract”.
Indeed, at Judgment [91], the Court described the exchange excerpted below as “redolent 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”
On the issue of payment terms, the Court found that there was an exchange which evidenced an agreement to the timing of payment (Judgment [93] – [95]). We set out the exchange below:
“[17/05/2023, 20:06:51] Ben James: Monthly applications
[17/05/2023, 20:11:50] Steve Fincham: Are you saying every 28 or 30 days from invoice that's a yes not on draw downs then good ... call you at 8.30 mate Thanks mate appreciated Ben
[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”
The Court stated that “the background to this exchange was that in respect of a previous contract the Claimant had held back monies until it had received monies from its customer. This exchange made it clear that the Defendant would be paid at latest 30 days after delivery of an invoice” (Judgment [94]). As such, there was an agreement to the timing of payment. The Court also rejected an argument on the “battle of forms” (Judgment [96] – [99]).
Claimant’s subcontract terms not incorporated. Given the above, as set out in Judgment [100], the Claimant’s subcontract terms were not incorporated into the Parties’ contract when it was concluded. And on the facts of the case, as set out in Judgment [101], the Defendant did not accept the Claimant’s attempt to incorporate those terms via the Claimant’s email of 26 May 2023.
Conclusion. This is case is, perhaps, a cautionary tale on why Parties should take care when exchanging WhatsApp messages.
The more “casual”, or “informal”, nature of WhatsApp messages may lead to situations where the Parties’ communications are less guarded than they would have been had the communications been made via more formal means of communication, such as in a letter issued under the Parties’ letterhead.
However, as this case demonstrates, there is no legal impediment against a contract being formed via WhatsApp exchange so long as all the essential terms have been agreed.
So do not assume that a contract cannot be formed via WhatsApp messages, and do not assume that a follow-up email can always “clean-up” the outstanding contract terms.
This publication is not intended to be, nor should it be taken as, legal advice; it is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking, actions based on this publication. Chancery Law Corporation is not responsible for, and does not accept any responsibility for, any loss or damage that may arise from any reliance based on this publication.