Businesses increasingly rely on messaging apps to communicate, often without considering the potential legal weight these apparently casual exchanges can carry. A quick “yes” or “sounds good” - or even an emoji - could create a legally binding agreement.
That might sound unlikely, but recent cases show how significant these informal conversations can become. In Jaevee Homes Ltd v Fincham [2025], the High Court in England found that WhatsApp messages were enough to form a binding construction contract.
So, when does a quick message result in a contract and what does that mean for businesses in Scotland, particularly for those in construction?
What’s the law in Scotland, and could this case have influence?
Scots contract law has traditionally developed through common law and court decisions, rather than a single piece of legislation. The Contract (Formation and Remedies) (Scotland) Act 2026, which received Royal Assent earlier this year, enshrines a number of those existing rules in statute.
The Act recognises that agreement can be reached through what parties say and do when they intend it to have legal effect. It also provides for electronic communications.
Whilst an English court decision is not binding in Scotland, I see no reason why a situation like that seen in Jaevee could not arise before the Scottish courts – where a contract might be found to have been formed, or amended, through communication one or more parties considered informal.
Where those in construction can get caught out
Those working in construction need to be particularly careful.
At the top end of large projects, standard forms and formal processes are common, so it is unlikely that an entire contract will be created in one WhatsApp conversation. But further down the chain, where contractors and subcontractors may work with the same people time and again, communication can become more informal.
Here things can get sticky. Key terms might be agreed without the input of legal or commercial teams, or an existing agreement amended through what might seem like a fairly casual exchange.
Parties may have discussed the price, what work is being done and how long it will take. Someone then sends a quick “yes” and, to them, that is the deal done. The same applies later down the line. A few messages about additional work, pricing or programme could be found to have amended an agreement and impacted upon the remedies available in a formal dispute.
When an issue arises, that is often where a construction disputes lawyer like me becomes involved, seeking to determine what a court might find was objectively agreed between the parties. You may think you were still discussing the deal when, legally, you had already made – or changed – one.
Why that can become costly for construction businesses or developers
This is where things can become messy and expensive. The risk is not simply that you have agreed to terms you did not realise were binding; if what you have formed is a ‘construction contract’, within the meaning of the Housing Grants, Construction and Regeneration Act 1996 (known as “the Construction Act”), statutory rules come with it whether you discussed them or not.
Payment is a good example. The Construction Act provides contractors (and sub-contractors) rights to interim payments, with specific rules around the timing of payment notices. Get those wrong, and you could find yourself bound to make a significant payment much earlier than expected, or one which you might not consider a fair reflection of the work carried out. If that issue cannot be resolved, the party seeking payment may be able to take the dispute to a so-called ‘smash and grab’ adjudication.
Then there are delays. Standard forms and a properly drafted contract should make clear who carries the risk if work starts late or holds up the wider project. Without agreement, you can end up spending valuable time arguing over who was responsible, what the delay cost and who picks up the bill.
WhatsApp isn’t the enemy
This isn’t a call to return to antiquated methods of communication. Instantaneous electronic messaging is simply how we communicate now. People want quick answers and, whether you are at your desk or not, it can be tempting to fire back a short response and move on with your day.
My advice for any business negotiating a new contract or operating under an existing one is to be more disciplined about what is being agreed. If you are still considering something, say that. “That sounds okay in principle, but I need to double-check and will confirm tomorrow” leaves far less room for argument than a simple “okay”, or even, as demonstrated in Jaevee, a thumbs-up emoji.
If negotiations are still ongoing, make that clear too. State that discussions are subject to a formal contract, and make sure key terms are then properly recorded through the usual contractual process.
WhatsApp itself is not the problem. The problem is that a message may later be interpreted by a court differently from how you intended it.
Published by https://www.heraldscotland.com