Contract formation in the digital age: English High Court finds binding agreement formed via WhatsApp messages

The recent case of Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) (2025) shows the potential pitfalls of discussing essential contract terms, such as the scope of work, price and payment obligations, in casual text conversations.

Message exchange v written contract

The dispute arose between Jaevee Homes Ltd, a property development company, and Mr Steve Fincham (trading as Fincham Demolition), a demolition contractor. The conflict centred around demolition works to be carried out by Fincham at a nightclub site being developed by Jaevee.

Initially, the parties discussed the scope of the demolition works via email. Mr Fincham then sent a written quotation for the work by email to Jaevee's CEO, Mr Ben James, who was using an email address for a different business. The negotiations then took a slightly more informal turn when Mr James and Mr Fincham began discussing terms via the messaging platform, WhatsApp.

On 16 May 2023, Mr James requested, in a WhatsApp message, that Mr Fincham provide a reduced quote for the work. Mr Fincham replied, proposing £248,000 as the price. The following day, Mr James confirmed via WhatsApp that Mr Fincham had been awarded the contract. The conversation went as follows: "[17/05/2023, 17:43:15] Steve Fincham: Ben Are we saying it's my job mate so I can start getting organised mate [17/05/2023, 20:06:42] Ben James: Yes"

In the same exchange, Mr Fincham also said that "men will start the following Monday". Mr James then sent a message saying "Monthly applications [for payment by invoice]" to which Mr Fincham replied that payment on "28 or 30 days from invoice" would be "good". Mr James replied, "Ok".

On 26 May 2023, Mr James emailed a formal contract to Mr Fincham, which named the contracting parties as Jaevee Homes and Fincham and included the contract price of £248,000.  

Work began and Fincham submitted several invoices over a two-month period, which were paid in part by Jaevee. A dispute arose over the amount of work undertaken by Fincham and the remaining sums due under the invoices. Jaevee purported to terminate the contract, arguing that the formal contract terms provided on 26 May 2023 applied to the agreement, based on the "last shot" doctrine. Fincham, however, contended that the contract was in fact concluded via the WhatsApp messages exchange on 17 May 2023 and that the terms were therefore as stated in those messages.

Contract formed by WhatsApp messages

The court agreed with Mr Fincham, ruling that the WhatsApp messages exchanged on 17 May 2023 constituted a concluded contract. Despite the informal nature of the communications, all the terms needed to form a construction contract were present.

Contracting parties: Jaevee argued that it was unclear who the employer was because Mr Fincham had primarily been negotiating with Mr James, who had been emailing from an address associated with another business. However, the court found that the original quotation provided by email had been requested by individuals using Jaevee Homes email addresses, who described themselves as "Property Development Director JaeVee" and "Site Project Manager JaeVee". Mr Fincham had also addressed his quotation to "Jaevee Ltd." Therefore, objectively, the contract was intended to be between Jaevee and Fincham.

Duration of the works: While Jaevee argued that there was no agreement on the duration of the works, the court said that this is not an essential element of a construction contract – if there is no express agreement, there is an implied term that the contractor will complete the works within a reasonable period.

Start date: Jaevee claimed that it was unclear whether a start date had been agreed. However, the court found that the start date was 29 May, as  expressed in Mr Fincham's WhatsApp message of 17 May, which explained that the first part of the works would commence "on the following Monday". The court said that even if that had not been agreed, agreement as to a precise start date was not an essential term of the contract.

Payment terms: Jaevee contended that there was no agreement on payment terms. The court found that in the context of a construction contract, the absence of payment terms is not contrary to the existence of a concluded contract, as terms can be implied under the Housing Grants, Construction and Regeneration Act 1996 to fill the gap. In any event, the payment terms had been agreed via Mr Fincham's WhatsApp message of 17 May 2023, stating that payment should be "28 or 30 days from invoice". The phrase "Monthly applications" in Mr James' message of the same date meant that monthly invoices could be submitted at any time within each monthly cycle.

Therefore, the court concluded that the parties had agreed the start date, the scope of the works, the price and the payment terms. Any other terms that had not been agreed could be implied by statute.  

As to the contractual terms that Jaevee emailed to Fincham on 26 May 2023, the court ruled that they were not incorporated into the parties' agreement, which had already been formed by that time via WhatsApp exchange, because Mr Fincham had not accepted them.

Osborne Clarke comment

Although this case concerned a construction contract, it is potentially of broader interest to all types of commercial agreement. However, where the agreement relates to a sector for which there are no statutory terms that can be implied into the contract to fill any gaps, perhaps the precise conclusions would be different. That said, the court can always imply terms under the common law if they are necessary to give effect to the parties' bargain or are so obvious as to go without saying.

In any event, while informal channels, such as WhatsApp, can facilitate quick and easy discussions, the case shows that using them when negotiating a contract can be fraught with danger and lead to inadvertently concluding a formal contract. If informal channels are used (or even where more formal channels are used, for example, a written memorandum of understanding), it should be made clear that negotiations are ongoing, that they are "subject to contract" and that the parties intend to enter into a formal written contract once negotiations are complete.

Using other conditions precedent, such as stating, for example, that nothing shall be binding until approved in writing by a particular person in the business, can also be helpful. That said, none of these will prevent a court from finding that a binding contract has been formed before any formal, written contract is concluded if all the necessary ingredients for a contract to be formed are in place – it will always depend on the facts and circumstances of the particular case.

Anna Matsiienko, a paralegal at Osborne Clarke, co-authored this Insight.