In the modern world of digital communications, where text messages have become the main means of communication, the question of their legal significance arises. WhatsApp, one of the most popular messaging platforms, is widely used both in everyday life and in the professional sphere. However, with the development of digital culture, text messaging is increasingly including emojis – small graphic images that complement or even replace words. An interesting case was considered by the Higher Land Court of Munich (Germany) on the use of emojis and WhatsApp when sending legally significant messages by the parties to a contract.
The court case of the Munich court (Germany)
In November 2020, the parties to the court case agreed on a “mandatory new vehicle order” (hereinafter – the purchase and sale agreement) for a Ferrari car, type SF90 Stradale (hereinafter – the car). The agreement provided that amendments to this agreement must be made in writing to be valid. The down payment of EUR 50,000 plus VAT agreed in the purchase agreement, i.e. EUR 59,500, was paid by the plaintiff in 2020. Subsequently, the parties had a detailed conversation via text messages via the instant messaging service WhatsApp. The defendant wrote to the plaintiff on September 23, 2021: “Good afternoon, Mr. A., SF 90 Stradale is unfortunately postponed to the first half of 2022. We could not foresee this and cannot influence it. At least the car will be there for the next season. Best regards, P”. The plaintiff replied: “Ups 😬”. And added: “Thanks for the information anyway. Is there anything in writing? At least a confirmation of the order?”.
On 11.11.2024, the Higher Land Court of Munich (Germany) overturned the decision of the court of first instance to dismiss the claim and held that the defendant must pay the plaintiff EUR 59,500 plus interest of nine percentage points above the base interest rate, starting from 08.06.2022.
In particular, the court stated that:
– It is disputable whether WhatsApp messages, if in writing, were legally agreed upon within the time limit established by law. A telecommunication transmission is sufficient to comply with the written form required by the transactions, unless a different expression of will is provided for. This applies to all types of telecommunications, as long as the messages are sent in symbols and the transmission is not in the form of speech (e.g., by telephone, voice mail or voice message). The concept of telecommunication transmission is not narrowed down to specific means, but rather is deliberately open for development. Reciprocal electronic or digital data transmission is sufficient; the means used in this process may vary. The text must be sent in such a way that it can be permanently stored;
– The free-form requirements of Section 127 BGB also apply if the notification is given in free form by sending a text message or an attachment in the form of a word processor or PDF file or a sufficiently high-quality photograph, but not a WhatsApp voice message or a video or audio attachment. Durability and reproducibility are provided in WhatsApp messages or attachments in a form described in advance.
On the one hand, it should be borne in mind that chat history is regularly saved to the cloud via backup in the WhatsApp app – unless this feature is disabled, i.e. saved permanently. On the other hand, it can be seen that – apart from the option “Delete for all” – messages opened after the sender within a short period of time after the sender can no longer be “rejected”. Reproduction is physically possible both through an expression (screenshot) and digitally by forwarding the message;
The view that instant messengers are mainly used only for the rapid exchange of purely private news and not for filing legal applications, and that the emotionality of private messages will be in the foreground, rather than the action in question with the corresponding legal consequences in view of the current widespread use of this form of 
electronic communication, also seems to be outdated in the law and is particularly refuted by the case at hand;
Regardless of whether the requirements of Article 127 BGB were met, the parties’ chat process does not reflect the content shown by the defendant. In particular, the plaintiff did not signal its consent to the extension of the delivery period until June 30, 2022;
A person may declare his or her will with the help of signs, i.e. also with the help of digital icons, such as emoticons. They are often used to emphasize, reinforce or clarify in what sense something should be understood (e.g. ironically). In this function, emojis in digital discourse perform the same functions as intonation, gestures, facial expressions, and other physical and linguistic elements in real conversations. Sometimes words in a sentence are also replaced by emojis. Whether the user of an emoji wants to express the will to commit or simply wants to convey their mood or emotional position is a matter of interpretation.
Emojis have the potential to be interpreted as a sign to be used. However, emojis also only play a role if the recipient can understand their meaning. Factors such as nationality and native language, cultural background, as well as age, 
gender, or personality structure can influence both the use and understanding of emoticons, and this is particularly evident between age groups. Thus, emoticons (a type of emoji) pose a risk of misunderstandings and misinterpretations, as the specific symbols used may be based on a specific “emoji social language” that exists only within a particular group. Therefore, we advise you to be careful and always record important legal messages exclusively in legal form, and use SMS messages only as an emotional supplement and informal communication.
