Making a contract through WhatsApp

The construction industry is built on formal contracts, but what happens when a deal is sealed with a simple "yes" on WhatsApp? STUART JORDAN* highlights a recent English court case that exposes the risks of mixing casual communication with high-stakes business.

- By STUART JORDAN*

CONSTRUCTION being what it is (expensive), it's natural to expect that parties will take extra care in formalising their agreements.

That's the theory anyway. We have looked before at the risk of creating contracts inadvertently through letters of intent and similar instruments. Today we'll look at an English Law dispute about some exchanges on WhatsApp, and we'll consider whether Middle Eastern legal principles would have brought a different outcome.

Here's the background: a property developer, Jaevee Homes Ltd ("Jaevee") began discussions with Steve Fincham, trading as Fincham Demolition ("Fincham") about some demolition works at premises in Norwich, England. They initially discussed the terms by email but no contract was concluded. Then, on May 17, 2023, the following WhatsApp exchanges took place between Ben James of Jaevee and Steve Fincham:

Steve: "Hi Ben How did you get on mate is the job mine mate"

Ben: "Can you start on Monday?"

Steve: "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"

Steve: "Ben. Are we saying it's my job mate so I can start getting organised mate"

Ben: "Yes" "Monthly applications"