Whats 'Appening? The impact of technologies on legal formality requirements?

While lawyers may still be wary of using WhatsApp in their professional life, the business world has been eager to embrace it. But what weight does a WhatsApp message (or the content of any messaging platform) have and how does it interact with established case law and statute?

The very recent case of Jaevee Homes Ltd v Fincham [2025] EWHC 942 (TCC) raised the question, and in this blog, we consider its impact and also we look at how 'pure' property cases have resolved the conflict of new technology and old formalities. 

Background

The dispute arose from a contract for demolition works between the claimant developer, Jaevee Homes, (the “Claimant”) and a sole trader, Steve Fincham, trading as Fincham Demolition. The value of the works was substantial. with a contract price of more than a quarter of a million pounds. Agreement had first been reached on 17 May 2023 through an exchange of WhatsApp messages that Mr Fincham should carry out the project, and on 26 May 2023 the Claimant had sent its subcontract terms by email to Mr Fincham. 

Legislation can impose statutory terms into contracts, which can have significant consequences for the parties. The central issue in this case was whether a contract had been concluded on 17 May 2023 through an exchange of WhatsApp messages or whether the Claimant's formal subcontract terms—issued later via email on 26 May 2023 —formed the contractual basis for the work. This distinction mattered because it had implications for whether the payment applications made by Mr Fincham were valid under the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts.

The Claimant sought a declaration from the Technology and Construction Court that the contract had only been concluded by email on the later of the two dates, while Mr Fincham contended that it was on the earlier date, which made the timing of payments more propitious for him. 

The Judgment

The High Court held, giving judgment on a Part 8 application (an application on the papers’ only with no live evidence), that a valid contract had been concluded by the exchange of the WhatsApp messages. 

The contentious contract, of course, was a construction contract, so did not require the formalities required by, for example, a contract of guarantee or some agreements relating to land or dispositions of interests in land.  A judge could, theoretically, have arrived at the same decision having heard live evidence of an oral contract made between the parties.  Does this case have resonance beyond its immediate facts?

Formalities and compliance

A contract relating to the sale or creation of interests in land engages section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Such contracts must be in writing, incorporate all agreed terms and be signed by the parties.  Under section 53(1) of the Law of Property Act 1925, the disposition of an equitable interest in land is a unilateral act and binding provided it is in writing and signed by the person disposing of it. Under a much older piece of legislation, section 4 of the Statute of Frauds 1677 requires  a contract of guarantee to be signed and in writing to be enforceable. 

New ways of compliance for old formalities?

It is trite to say that technology has moved on from the eighteenth and twentieth century.  Even when the Law of Property (Miscellaneous Provisions) Act 1989 came onto the statute book it would first only have been available in hard copy.  The means of sending emails has existed since the 1970s in the military, government and computer science departments at universities, but were unknown in most business environments.  By the end of the 1990s the internet had become the norm in most offices.

Still, it took a while for the question to reach the courts.   The first relevant case seems to have related to the enforceability of a guarantee in a shipping case  Golden Ocean v Salgaocar in 2012. ith comparative ease, the Court of Appeal held that a guarantee concluded by an exchange of emails was valid. The court found that the chain of emails, when read together, constituted a single agreement in writing, and that the inclusion of a typed name at the end of an email could satisfy the requirement of the Statute of Frauds 1677 for signature.

Property cases took longer to succumb to modern technology.  In the Manchester County court, in Neocleous & Anor v Rees [2019] EWHC 2462 (Ch), a claimant successfully applied for specific performance of a contract for the sale of a piece of land in the Lake District. The contract had been concluded in the context of a email negotiations between the parties with their signature provided being affixed to the email chain. Golden Ocean was specifically cited by the judge. 

The inadvertence of the parties as to the power of what they wrote in an email was also seen in the more recent case of Hudson v Hathaway. Here is a link to our blog post we wrote at the time. This was a dispute about the quasi-matrimonial home between a separated couple, however the principle would apply equally in a commercial context. One of the parties wrote in an email words to the effect that he would transfer (or “release” to use the correct term) his interest in the jointly owned house to the other. He signed the email with his first name

A very distinguished court of appeal held that the email with the signature attached satisfied the formalities, and the equitable interest had indeed been released. The court looked at the intention of the disponor – the party releasing the interest – and held that he had intended to effect an immediate disposition and was therefore bound by it. 

Email – a slippery slope?

If a court is happy to look at the intention of the parties and give a purposive approach to the formalities required by the legislation, then it is possible that even a WhatsApp message may suffice in the future. Unlike email, there is no built in ability to add a sign off on WhatsApp, but many people will append their name to a WhatsApp message if they are messaging people outside their family and friends group. 

It is difficult to see an enforceable multi-million property deal being concluded by WhatsApp just yet, but for most of recorded history mankind has retained a touching belief in the validity of the “handshake” and the “gentleman’s agreement”. Indeed, the whole doctrine of proprietary estoppel was developed to maintain that trust. At the same time, there is the contrary belief that a contract is not a contract if it is not in writing and signed. Both beliefs are wrong, it seems. Writing is needed, and some sort of signature. The courts are keen to look at the intention of the parties, and if they find such an immediate intention, then they are willing to take a very modern approach to evidencing that intention and appending names. 'Think before you text' has never been a better piece of advice.