WhatsApp messages could form binding contract: judgment provides warning to construction professionals

The recent decision in Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) [2025] EWHC 942 (TCC) has significant implications for construction professionals, serving as a stark warning that informal exchanges of WhatsApp messages could be sufficient to constitute a binding construction contract (even in circumstances where written payment terms are virtually non-existent).

In this case, the demolition contractor (Fincham) had been embroiled in a dispute with a property developer (Jaevee) over work carried out at a nightclub for a lump sum of £248,000.

The Judge (Mr Roger ter Haar KC, sitting as a deputy High Court judge), ruled:

 “In my judgment, the exchange of WhatsApp messages, whilst informal, evidenced and constituted a concluded contract.”

In reaching this decision, various exchanges of informal emails and WhatsApp messages were considered including Fincham asking, “Are we saying it’s my job mate so I can start getting organised mate” and Jaevee’s simple “Yes” in reply. This exchange was held by the judge to be “redolent of a concluded agreement”. There was no express indication that the final agreement depended on confirmation of any other matter such as the incorporation of Jaevee’s standard terms of contract, with the basic elements of a legally binding contract deemed to be present.

It was confirmed that “the absence of payment terms is not antithetical to the existence of a concluded contract – an important target of the 1996 Act [Housing Grants Construction and Regeneration Act 1996] is to fill the gap if a contract does not contain appropriate payment terms”.

As the WhatsApp messages made no provision as to how monthly instalments were to be calculated, the judge confirmed that the 1996 Act provides that the Statutory Scheme for Construction Contracts Regulations 1998 (as amended) would step in to fill the gaps and calculate the monthly instalments to which Fincham was entitled. The implication being that even if an invoice does not have a detailed breakdown, it could still be considered a valid payment application if it clearly stated the work done and the sum due.

As for payment intervals, Jaevee saying  “Monthly applications” and Fincham responding “Are you saying every 28 or 30 days from invoice that's a yes not on drawdowns then good d) call you at 8.30 mate Thanks mate appreciated Ben”, was considered to mean that Fincham “was free to make one, but only one, application for payment each month”  and it would be paid within 28 to 30 days. Fincham had sought to make more frequent applications.

This decision underscores how important care and clarity is (particularly around the use of informal correspondence such as texts and WhatsApp) when seeking to expressly agree key contractual terms in order to avoid unintentionally entering into a binding contract, especially on unfavourable terms (which may be implied by common law and statute i.e. the  payment regime under the 1996 Act, and which may not reflect negotiations). This can easily lead to unintended obligations and liabilities. Where possible, a clear written contract should follow up informal correspondence reflecting the agreed terms and, in this regard, legal assistance is always recommended.