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The Court of Appeal on WhatsApp, Email, and Contract Formation in DAZN Limited v Coupang Corp. [2025] EWCA Civ 1083 is a good reminder that at English law binding contracts can easily be created informally - including by WhatsApp or email.
This decision related to the negotiation of broadcasting rights for the FIFA Club World Cup 2025 in South Korea. The Court of Appeal upheld a decision that a binding contract was formed by email following WhatsApp messages and phone calls between DAZN (a global sports broadcaster) and Coupang (a South Korean streaming platform). This was even though some terms remained to be agreed and a formal contract had been anticipated.
What was the dispute between the parties?
Coupang argued that its email offer setting out deal terms had been accepted by an email from DAZN of 3 March which stated, "I am pleased to inform you that we accept Coupang Play's offer...we will start contract drafting...".
DAZN argued that the parties had not intended to create a legally binding contract by the 3 March email pointing to the offer had mentioned an "intention" to acquire the rights, and the 3 March email referring to starting drafting.
What was the Court of Appeal's Decision in DAZN v Coupang [2025]?
The Court of Appeal dismissed the appeal. Lord Justice Popplewell emphasised the requirement to look at the communications and conduct as a whole and concluded that the parties had reached an agreement by which they intended to be immediately and legally bound by the exchange of the emails of 27 February and 3 March. There was no argument that insufficient terms were agreed to constitute an enforceable contract.
The Court found that:
- by the time of the 27 February email all the essential terms were agreed with the email setting out the deal terms and treated as a formal offer.
- by the time the 3 March email was sent, there could be "little doubt" that the email saying 'we will accept Coupang Play's offer' was intended to be a formal acceptance of the offer, and it was described afterwards as 'an email to formalise our acceptance'.
- there was nothing to suggest that the parties intended formal drafting as a prerequisite to being legally bound. By the time of the email exchange the parties had agreed all essential terms, the use of "contractual phase" language indicated expectation of being legally bound, and other indications showed the deal was considered concluded and finalised. For example, a view expressed by DAZN that Coupang should get on with marketing without waiting for the long form agreement and the absence of the words "subject to contract or anything equivalent".
- the fact that the deal was urgent also pointed to it being more likely that the parties considered themselves bound without the need of a formal contract being drawn up.
- negotiation by informal means followed by formalisation by email was common practice in the industry.
Practical tips
For parties who do not intend to be bound until a formal written agreement:
- Use clear language such as "subject to contract" or explicitly state that no binding commitment exists until formal execution. Alternatively, state that no contract can be formed until you have board or internal approval.
- Be wary of negotiating by instant messaging and email. The informality might mean you neglect to say "Subject to Contract", but the courts will not accept that as a good excuse.
- Make it clear by conduct during the course of negotiations that there is no intention to be bound by discussions or messages.
- Train commercial colleagues to be wary of undertaking informal discussions outside of formal negotiations. This is especially the case where contracts are often concluded informally.
- Discuss at the outset the formalities required for the negotiations. State that a formal agreement is required.
- Note that in this case conduct after apparent agreement was taken account of by the court in deciding the parties were legally bound.
Read the original article on GowlingWLG.com
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