{"id":372292,"date":"2025-08-25T12:24:14","date_gmt":"2025-08-25T12:24:14","guid":{"rendered":"https:\/\/www.europesays.com\/uk\/372292\/"},"modified":"2025-08-25T12:24:14","modified_gmt":"2025-08-25T12:24:14","slug":"whats-up-with-whatsapp-contracts-contracts-and-commercial-law","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/uk\/372292\/","title":{"rendered":"What’s Up With WhatsApp Contracts? – Contracts and Commercial Law"},"content":{"rendered":"

The High Court has recently considered whether an exchange of
\nWhatsApp messages can create a contract.<\/p>\n

Jaevee Homes v Fincham [2025] EWHC 942
\n(TCC)<\/a><\/strong> arose from a dispute between a property
\ndeveloper, Jaevee Homes Limited (“the developer”), and
\ndemolition contractor Mr Steve Fincham (“Steve”)
\nregarding the terms of a construction contract.<\/p>\n

The parties had agreed that Steve would carry out demolition
\nwork, but they disagreed over the terms of their agreement. They
\nhad started negotiating via email and then moved to WhatsApp
\nmessages. Steve argued that a sub-contract with the developer was
\nformed by this exchange of WhatsApp messages. The developer
\ncountered that a sub-contract had been agreed based on its standard
\nterms of business, having sent Steve these standard terms after the
\nWhatsApp exchange but before Steve started work.<\/p>\n

Steve started the demolition work on 30 May 2023 and completed
\nit by July. The developer failed to pay any of his four invoices in
\nfull. Following a disagreement over the amount of work Steve had
\ncompleted, the developer purported to terminate the sub-contract
\nthat was (supposedly) based on its standard terms of business. The
\ndeveloper also argued that the four invoices Steve had submitted
\n\u2013 on 9 June, 23 June, 14 July and 27 July 2023, totalling
\nalmost \u00a3200,000 + VAT \u2013 did not comply with its
\nstandard terms of business and were therefore invalid.<\/p>\n

After a complex background of legal proceedings, the dispute
\nended up for consideration before Judge Roger ter Haar in the High
\nCourt.<\/p>\n

How was a contract formed?<\/p>\n

Judge ter Haar found that the parties had agreed a contract by
\nthe following exchange of WhatsApp messages:<\/p>\n

\"1669530<\/p>\n

The judge said that this exchange, “whilst informal,
\nevidenced and constituted a concluded contract”. There was by
\nthis point clear agreement on the identities of the parties, on the
\nscope of the works that Steve was to perform and on the price.
\nThese being sufficient to bring a contract into existence, the
\ndeveloper’s reply “Yes” brought a contract into
\nexistence.<\/p>\n

The judge went on to find that the parties had also agreed
\npayment terms (monthly payment applications using invoices) but
\nthat this was not essential to create a contract. And, if the
\nparties had not considered the payment terms, legislation would in
\nany event have implied payment terms into the sub-contract, it
\nbeing a construction contract (on which, see below).<\/p>\n

The developer had argued that there was no agreement on the
\nduration of the works. The judge commented that this was not
\nessential to form a contract, noting that the law implies a term
\nthat the contractor will complete their work within a reasonable
\ntime.<\/p>\n

The developer had also complained that no start date had been
\nagreed. The judge said that a precise start date was not “an
\nessential term of the contract”. It was therefore not needed
\nto create a binding sub-contract.<\/p>\n

Peculiarities of construction contracts<\/p>\n

In isolation, this case may not seem especially noteworthy. It
\nis well established that contracts can be concluded without much
\nformality. Provided the usual tests are met (clearly identified
\nparties, agreement on what is to be done, consideration such as a
\npromise to pay a price, an intention to create legal relations and
\nsufficiently certain material terms), there is no legal principle
\nagainst concluding a contract through WhatsApp messages.<\/p>\n

However, this case is particularly interesting for businesses
\ninvolved in the construction sector. It highlights the significance
\nof the Housing Grants, Construction and Regeneration Act 1996
\n(“the Construction Act”). Just as the Consumer Rights Act
\n2015 implies terms into consumer contracts \u2013 such as that
\ngoods sold must be of satisfactory quality and as described \u2013
\nthat are not necessarily in the parties’ minds when concluding
\na consumer contract, so the Construction Act implies important
\nterms into construction contracts. Many terms.<\/p>\n

Part II of the Construction Act defines what a
\n“construction contract” is. This is broader than you
\nmight expect. It encompasses, not just stereotypical building work,
\nbut also professional services (such as landscape design) and a
\nplethora of other activities, such as painting or the fitting of
\nair conditioning \u2013 except contracts with residential
\noccupiers.<\/p>\n

Until 2011, “construction contracts” had to be in
\nwriting. That is no longer the case. Now, even oral construction
\ncontracts, such as Steve’s sub-contract, are captured by the
\nConstruction Act.<\/p>\n

The Construction Act implies a unique right to refer disputes to
\nan adjudicator. This is the right that Steve used to bring a
\n\u2013 successful \u2013 adjudication against the developer to
\nenforce his four payment applications, which the developer then
\nsought to challenge in the High Court, including before Judge ter
\nHaar.<\/p>\n

Adjudication, which applies only to construction contracts (and
\nto other forms of contract where parties have expressly opted in),
\nis a rapid and (compared to litigation in the courts) low-cost
\nmethod of resolving disputes. Each party must pay its own costs and
\nthe process is widely regarded as effective. Very rarely do courts
\nallow appeals from adjudicators’ decisions. Instead of a judge
\ndeciding the dispute by following the courts’ usual slow
\ntimescales, an independent adjudicator reaches a decision within
\nweeks of a dispute being referred to them. Adjudicators are often
\nconstruction professionals such as quantity surveyors, rather than
\nlawyers.<\/p>\n

If a construction contract does not contain written provisions
\nregulating the adjudication process \u2013 such as oral contracts
\nand Steve’s WhatsApp contract \u2013 rules are implied by the
\nScheme for Construction Contracts (England and Wales) Regulations
\n1998 (“the Scheme”). Additionally, the Construction Act
\ntightly regulates payments in construction contracts. Where parties
\ndo not expressly agree payment terms, comprehensive terms are
\nimplied by the Scheme.<\/p>\n

In Steve’s case, the developer had sought to argue that no
\ncontract could have been formed by the exchange of WhatsApp
\nmessages because of an (alleged) absence of terms regulating the
\npayment process, and that instead its standard terms of business
\napplied. Because Steve had not complied with the stringent payment
\nprovisions of those standard terms, this argument would have
\nallowed the developer to set aside the payment applications that
\nSteve had enforced via adjudication.<\/p>\n

The judge dismissed the developer’s arguments, noting that
\ncomprehensive payment terms are implied by the Scheme and that
\nSteve, in making payment applications by issuing his invoices, had
\ncomplied with those implied terms. Therefore, three of Steve’s
\nfour payment applications were valid. (The fourth was invalid
\nbecause Steve had made two applications that month, and the judge
\nfound that the parties had agreed in their WhatsApp messages that a
\nmaximum of one payment application would be made in any monthly
\npayment cycle. Notwithstanding this, Steve was the successful party
\noverall, having succeeded on every other point.)<\/p>\n

What does this case mean for you?<\/p>\n

This case provides a timely reminder of the ease with which
\ncontracts can be created. In the construction sector and other
\nareas with complex legislation, such as the processing of personal
\ndata, these can automatically be subject to a wide range of
\nunfamiliar terms and processes.<\/p>\n

As a business, it is important to make sure that you know when
\nyou have formed a contract. To avoid creating contracts
\nunexpectedly:<\/p>\n