Media reports after the discovery of the mistake. Others do not. He also called the first plaintiff to see if the latter had managed to successfully complete his purchase. 105 It is not only reasonable but right that the objective appearance of a contract should not operate in favour of a party who is aware, in the eyes of the law, of the true state of affairs when, for instance, there is real misapprehension on the part of the mistaken party and when the actual reality of the situation is starkly obvious. Certainty in commercial transactions should not be trifled with, as this will inevitably affect how commercial and business exchanges are respected and effected. Lord Griffiths in, 87 It appeared to me that the extract from, 88 The fact that the amending party has been tardy or even negligent is a factor that a court can (and in some egregious cases, should) take into account but this is by no means a decisive factor (, 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. He is also described as the sole proprietor and manager of two other businesses that provide business support and consultancy. I drew counsels attention to Halsburys Laws of Australia (Butterworths, 1992), vol6 at para 110-5550 which states: A particular class of case which illustrates unilateral mistake as to the terms intended, known to the other party, is that in which an offer which would be very advantageous to the offeree is snapped up by the offeree. In this case, there was no consensus ad idem or meeting of the minds between the parties, which meant that there could be no binding contract between them. Pages 74 Ratings 100% (5) 5 out of 5 people found this document helpful; (See for example the approach in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 1AllER 512.) In the fifth plaintiffs affidavit evidence, he asserted emphatically and unequivocally that at no point did I ever think that the price of the printers were a mistake. In a physical sale, the merchant can immediately turn down an offer to purchase a product that has been advertised; otherwise he may be inundated with offers he cannot justify. He sought to amend his affidavit and testified that if the references in his affidavit implied the acknowledgement of a mistake, they were formulated not by him but by his previous solicitors and were incorrect. Not all one-sided transactions or bargains are improper. The payment mode selected by the third plaintiff was cash on delivery. Case law Chwee Kin Keong v Digilandmallcom Pte Ltd suggests that General Rule. Furthermore, they relied on a passage from, At the trial leave to amend particulars will as a rule be refused (, 84 It is axiomatic that a court will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the proceedings has been completed. The rules of offer and acceptance are satisfied and the parties are of one mind. The evidence incontrovertibly indicates that the first plaintiff himself entertained this view for the entire period he was in communication with the second and third plaintiffs. He received this information through an sms message. 43 After receiving a call from the first plaintiff at about 2.00am informing him that he had found an opportunity to make money as there was an arbitrage position to be achieved for some Hewlett Packard printers, the third plaintiff duly accessed his e-mail and visited the HP website. It can be noted, however, that while s15 of the ETA appears to be inclined in favour of the receipt rule, commentaries indicate that it is not intended to affect substantive law. 154 Interestingly, of the 784 persons who placed 1,008 orders for 4,086 laser printers, only these six plaintiffs have attempted to enforce their purported contractual rights. This is in contrast to the English position where after several decades Hartog v Colin & Shields still remains the locus classicus. However, if the defendant did not have stock, it would immediately call the supplier and procure the products for the end-user. 85 Having stated the general rule, it is imperative that the rationale underlying this approach be understood. Despite the general views expressed in. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. Desmond intimated that the defendant would give vouchers or special deals as a matter of equitable compensation should it not honour the purchase orders. This could account for the substantial number of Canadian cases in this area of the law. In fact, he and the fourth plaintiff have jointly conceptualised and implemented an Internet-related business. Ltd.1 has the makings of a student's classic for several rea- Desmond: 13/01/20 01:40 if any friend got extra printer u want? 32 Satisfied with his enquiries in relation to the printer model, he returned to the HP website and placed an order for 100 laser printers at about 2.23am. It deals with the process rather than the substance of how to divine the rule. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2 Civil Procedure Costs , Civil Procedure Pleadings , Contract Mistake Decision Date: 13 Jan 2005 . He is currently employed as an accountant in an accounting firm, Ernst & Young. This is to be contrasted with: Hare, Inequitable Mistake (2003) 62CLJ 29, Chandler et al, Common Mistake: Theoretical Justification and Remedial Inflexibility [2004] JBL 34. 134 It is not really in issue that contracts can be effectively concluded over the Internet and that programmed computers sending out automated responses can bind the sender. He was aware that the laser printers were targeted for business use. 7191 RSS High Court Expand/Collapse. 2 [2004] 2 SLR 594 ("the Digilandmall case") (The decision was very recently affirmed by the Singapore Court of Appeal in Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] SGCA 2, albeit on somewhat different grounds and where the focus was on the law of unilateral mistake rather than formation of contract.)]. The first and fifth plaintiffs ordered exactly a hundred laser printers each. Take a look at some weird laws from around the world! 26 I respectfully agree with the reasoning of ShawJ in Can-Dive Services Ltd v Pacific Coast Energy Corp (1995), 21CLR(2d) 39 (BCSC), where he said at 69-70 that: While I agree with what Madam Justice Mclachlin said so far as it goes, I do not believe she intended to imply that there must be a conscious taking advantage by one party of the other in all cases. From time to time they communicate with each other, 4 The defendant is a company that sells information technology (IT) related products over the Internet to consumers. Court Judgement chwee kin keong and others digilandmall.com pte ltd slr sghc 71 suit no: suit decision 12 apr 2004 date: court: coram: counsel: high court rajah Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew My Library Discovery Institutions London School of Business and Finance SAA Global Education When, however, the cases provoked by these factual situations are analysed, they will be seen to fall, not into three, but only two distinct legal categories. This constituted more than a quarter of the total number of laser printers ordered. This is a case about predatory pack hunting. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. He said that he wanted to be sure that the offer on the HP website was genuine. 131 In a number of cases, including the present, it may not really matter which view is preferred. He then carried out some checks on the Yahoo search engine to ascertain whether the printer model existed and whether the laser printer could be sold at more than $66. This can result from human interphasing, machine error or a combination of such factors. Indeed, upon re-examination, he attempted to distance himself from the portion of his affidavit suggesting that the possibility of a genuine mistake had crossed his mind after the first transaction. In terms of chronological sequence, the initial page accessed was the shopping cart, followed by checkout-order . Desmond: 13/01/20 01:24 just ordered 3 colour lazer printer for S$66.00 each. If an offeree understands an offer in accordance with its natural meaning and accepts it, the offeror cannot be heard to say that he intended the words of his offer to have a different meaning. Be that as it may, the fifth plaintiff, soon after he received MsTohs research, shared the information with the second and third plaintiffs. Solicita tu prueba. It became apparent that the plaintiffs misplaced reliance on the extract earlier cited probably also explained their singularly odd conduct in applying for amendments, only to withdraw their application later in attempting to deny the defendant an opportunity to amend its pleadings. This may have created formatting or alignment issues. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract, 26 I respectfully agree with the reasoning of ShawJ in. Has an agreement been reached or not? It was held that the contract between the parties was void. As with any normal contract, Internet merchants have to be cautious how they present an advertisement, since this determines whether the advertisement will be construed as an invitation to treat or a unilateral contract. An e-mail, while bearing some similarity to a postal communication, is in some aspects fundamentally different. I note that Chitty at para5-089, fn25 sagely opines that Taylor v Johnson does not represent English law, at least, where the other party knows that a mistake has been made. A viewer from any part of the world may want to enter into a contract to purchase a product as advertised. Some of the plaintiffs appeared rather coy or ignorant in this regard but I did not find their performance believable. In Chwee Kin Keong and ors v Digilandmall.com Pte Ltd, 5 VK Rajah JC, as His Honour then was, decided against the rule-based approach in Moss v Malings. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. 147 It is improper for a party who knows, believes or ought, objectively speaking, to have known of a manifest error to seek commercial benefit from such an error. He conducted the searches to ascertain what the laser printers true price was. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. It is axiomatic that normal contractual principles apply but the contractual permutations will obviously be sometimes more complex and spread over a greater magnitude of transactions. 3 All six plaintiffs are graduates, conversant with the usage of the Internet and its practices and endowed with more than an adequate understanding of business and commercial practices. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. The modern approach in contract law requires very little to find the existence of consideration. This is an area that needs to be rationalised in a coherent and structured manner. It appears that in Convention transactions, the receipt rule applies unless there is a contrary intention. He offered no plausible explanation for the series of orders which he placed while he was in communication with the other plaintiffs, other than stating audaciously that he had to buy a lot to sell a lot, to get a lot. We are only concerned with the question whether relief might be given for common mistake in circumstances wider than those stipulated in Bell v Lever Bros Ltd [1932] AC 161. It is asserted that since mistake had not been pleaded as an equitable defence, equity cannot be invoked by the defendant. If the defendant were right, they maintain, uncertainty would prevail in the commercial world and more particularly in Internet transactions. The recipient rule appears to be the logical default rule. This pricing was a mistake, which was fundamental to the contract and the complainants must have known that this absurdly low pricing was an error by the defendants. 70 The third plaintiff proceeded to place orders on behalf of the sixth plaintiff on the HP website. The question is what is capable of displacing that apparent agreement. Comments Published in English: [2004] 2 SLR 594; [2004] SGHC 71. ! with its importance set at high. Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR(R) 594; [2004] 2 SLR 594 (refd) Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332; [2009] 2 SLR 332 Interestingly, Desmond also remarked to the first plaintiff that he wasnt greedy before I tok to u. He is described by his counsel in submissions as a prudent and careful person. The leading Canadian decision in this area is the case of, 120 The widening of jurisdiction to embrace a broad equitable jurisdiction could well encourage litigious behaviour and promote uncertainty. 31 He admitted receiving a call from the first plaintiff at about 2.00am but claimed the first plaintiff merely apprised him of a good deal. I accept that this is capable of including circumstances in which a person refrains from or simply fails to make enquiries for which the situation reasonably calls and which would have led to discovery of the mistake. This is an online dating and match-making service. Soon after, the second, third and fifth plaintiffs took their claims to the media. Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . The plaintiffs refute that the error exonerates the defendant; they insist that a concluded contract is sacrosanct and must be honoured. 153 These statements of jurisprudence are of cardinal importance in understanding and fashioning the law of contract. 5 A related website for corporate clients and re-sellers (the Digiland commerce website) is owned and operated by a related entity, Digiland International Limited (DIL). When giving evidence, he struck me as cautious, taking great pains to convey the impression that his numerous online enquiries that morning were routinely carried out without any real inkling that an error had occurred. Rather they assist in explaining how the common law has incrementally and cautiously allowed and continues to mould exceptions to the application of the objective theory of contracts. 141 In so far as the sixth plaintiff is concerned, I emphasise that his knowledge and/or conduct of should be equated with that of the third plaintiff. [The Myth of Mistake in the English Law of Contract (1954) 70LQR 385 at 396]. As the Channel NewsAsia report so succinctly summarised they saw a great opportunity and grabbed it. At 4.15am, he sent an email to the first plaintiff, copied to the second plaintiff, with a happy emoticon following check out the prices here (see [19]. Date of Verdicts: 12 April 2004, 13 January 2005. 21 The first plaintiff must have realised at the outset that he would have to explain with a certain measure of credibility the purport and significance of all his Internet communications between 1.00am and 3.00am on 13January 2003. The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. High Court and Court of Appeal, recently, in a number of case . It appears to suggest that even if an offer is snapped up, the contract is not void. The other school of thought views the approach outlined earlier with considerable scepticism. 72 To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. In evidence he explained his conduct in the following manner: I felt that I had done all that was conceivably within my means to ensure that the Price was not a mistake. 148 The circumstances under which the orders were placed and the quantities sought to be purchased wholly undermine counsels variegated contentions that the plaintiffs lacked knowledge of or belief in the existence of a mistake. There can be no other reasonable explanation. As most web merchants have automated software responses, they need to ensure that such automated responses correctly reflect their intentions from an objective perspective. The law of mistake has generated its own genre of mistakes and obfuscation. They stoutly assert that they were too preoccupied with the realisation of potential profits through a so-called arbitrage position between different markets to contemplate that an error had been made. Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 stated: [T]o allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. This is clearly a mistake as they could not possible be sold for an amount that in a commercial situation. Here are some examples of case citations for other jurisdictions. Users may find that it may not be as forgiving as more traditional methods of communications. Cases of fraud and misrepresentation, and undue influence, are all catered for under other existing and uncontentious equitable rules. In the light of that consideration we can see no way that Solle v Butcher can stand with Bell v Lever Bros Ltd. The CISG has currently been adopted by 95 Contracting States world-wide. It takes the view that there is no jurisdiction in equity to rescind a contract that is valid at common law, on the basis of mistake. They are not entitled to the costs of the subsequent brief hearing, for reasons I now deal with summarily. The present article analyses the many important issues that are raised by what is probably the first case on Internet mistake - the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594. Evidence was given that if phone calls were indeed placed, they would from time to time limit the number of sales. The Instantaneous Transmission of Acceptances. Having said that, this exception must always be prudently invoked and judiciously applied; the exiguous scope of this exception is necessary to give the commercial community confidence that commercial transactions will almost invariably be honoured when all the objective contractual indicia are satisfied. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. In-house law team, Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502, Contract unilateral mistake Internet Contract Consensus ad Idem Meeting of the Minds Acceptance Offer Void Error. 58 The fifth plaintiff was first informed by the second plaintiff at about 2.30am about cheap laser printers being available for purchase. Lord Phillips of Worth MatraversMR observed in a withering analysis at [156], [157], [160] and [161]: Thus the premise of the equitys intrusion into the effects of the common law is that the common law rule in question is seen in the particular case to work injustice, and for some reason the common law cannot cure itself. I reject this. Samuel Teo had used all these notional numerals on the training template. Looking for a flexible role? If he was prepared to commit this view in writing to a larger circle of 54 friends and business associates, 47 Not content with making his own purchases, he woke up his brother and transacted 330 units on his behalf. 98 Once an offer is sent over the Internet, the sender loses control over the route and delivery time of the message. 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. . 50 Ow Eng Hwee, 29 years old, is another network marketing entrepreneur. At 4.16am he placed another order for one laser printer, by credit card, on the HP website. The present article analyses the many important issues that are raised by what is probably the first case on Internet mistake - the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594. 35 In addition to these conversations, the second plaintiff also accessed the Epinions website and sent a related e-mail to the first plaintiff. The prospective buyer has to make an offer to purchase which is then accepted by the merchant. There is no doubt that the plaintiffs acted with indecent haste in the dead of the night in placing as many orders as each of them felt their financial resources credibly permitted them to do. This assertion is patently untrue. If coherence is to be restored to this area of our law, it can only be by declaring that there is no jurisdiction to grant rescission of a contract on the ground of common mistake where that contract is valid and enforceable on ordinary principles of contract law. Given its global reach and ever changing technological advancements, Internet usage will pose a myriad of issues for resolution. The e-mail was given a high importance priority and captioned go load it now!!. In the context of its true market value the absurd price of $66 was almost the commercial equivalent of virtually giving away the laser printers. Part of the training module included hands-on training with a new template for a Price Mass Upload function. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. 63 It is pertinent he too made web searches using the Google search engine. While this is the general principle for shop displays, it is open to a merchant to offer by way of an advertisement the mechanics of a unilateral or bilateral contract. Free resources to assist you with your legal studies! The credit card payments had not been processed. CISG-online is a research platform dedicated to the law and practice of the United Nations Convention on Contracts for the International Sale of Goods adopted in Vienna on 11 April 1980 (CISG), as well as related areas of international commercial law. 129 The careful analysis of case law undertaken by that court yields a cogent and forceful argument that Lord DenningMR was plainly attempting to side-step Bell v Lever in a naked attempt to achieve equitable justice in the face of the poverty of the common law. He claimed that when he could not find the identical model on the US HP website he had assumed initially that the laser printer might be obsolete and was therefore being off-loaded cheaply at $66. He also claimed to have talked to buyers in the market about reselling the laser printers and that the failure to procure the units would tarnish his reputation. Altogether different considerations may arise if a party, at a late stage, seeks through an amendment to adduce further evidence to support that same amendment. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. The initial order for 30 laser printers was placed at round 3.45am while the second order for 300 units was placed at around 3.53am. 140 The defendant has however properly asserted that there was a unilateral mistake that vitiated all the contracts. His counsel contends that the idea the price was a mistake never arose in the second plaintiffs mind; he was preoccupied with thinking about the profit potential of the laser printers. Despite the general views expressed in Taylor v Johnson (1983) 151CLR 422 on equitable mistake, it seems to be generally accepted in Australia as well, that this class of cases requires special mention and consideration. No modern authority was cited to me suggesting an intended commercial transaction of this nature could ever fail for want of consideration. If anything, certain portions of the affidavits raised even more doubts about the plaintiffs credibility. The marrow of contractual relationships should be the parties intention to create a legal relationship. Market orders: order to be executed immediately at the best available price. [emphasis added]. COOKE v OXLEY (1790) 3 T. R. 653. I do not know if this is an error or whether HP will honour this purchase. It appears that he was also in touch with the fifth plaintiff as evidenced by an e-mail sent later that morning by the fifth plaintiff to both him and the second plaintiff containing research on what companies who had made similar Internet errors did. I even went to both the HP Web-Site as well as the DigilandMall Web-site to see if the prices were the same. 120 The widening of jurisdiction to embrace a broad equitable jurisdiction could well encourage litigious behaviour and promote uncertainty. 133 It is however clear that the law should not take cognisance of bad bargains and misapprehension that do not affect a fundamental or essential aspect of a contractual relationship. A contract will not be concluded unless the parties are agreed as to its material terms. . In Canada, the latter suffices. Added to his own purchases of 760 units, he was effectively responsible for the purchase of 1,090 laser printers. Furthermore, they relied on a passage from Singapore Civil Procedure 2003 (Sweet & Maxwell Asia, 2003) at para20/8/47 that asserts: At the trial leave to amend particulars will as a rule be refused (Moss v Malings (1886) 83ChD 603). They even discussed the possible scenario of the defendant not honouring the transactions. Scorpio: 13/01/20 01:33 as many as I can! It was found that the plaintiffs must have known or realised that the offer did not express the true intention of the defendants. Placing an advertisement on the Internet is essentially advertising or holding out to the world at large. Singapore Court of Appeal. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. 6 On Wednesday, 8January 2003 between 3.00pm and 4.00pm, DILs employees conducted a training session at the defendants premises. A prospective purchaser is entitled to rely on the terms of the web advertisement. Mistakes are usually synonymous with the existence of carelessness on the part of the mistaken party. Ltd. has the makings of a student's classic for several reasons, including: 1. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. In the recent case of Chwee Kin Keong and others v Digilandmall.com Pte Ltd (2005), the Singapore Courts were provided with an opportunity to revisit the law concerning mistakes made in the formation of a contract, in particular, in the context of online contracts. After establishing from the web pages that the price quoted for the laser printer was indeed $66, he proceeded to make searches through search engines like Yahoo and visited the website of Hardware.com. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. This rationalised the law and gives the court a broad discretion to fashion the applicable relief. The leading Canadian decision in this area is the case of McMaster University v Wilchar Construction Ltd (1971) 22DLR(3d) 9 which, incidentally, was cited with approval by the Australian High Court in Taylor v Johnson. V K Rajah JC. The same view is echoed in Halsburys Laws of Singapore vol7 (Butterworths Asia, 2000) at [80.164]. The defendant was entitled to stake its entire defence on the basis of common law, though it would have been prudent ex abundanti cautela to have asserted the equitable position in the alternative. Chwee Kin Keong vs Digilandmall.com - Free download as Powerpoint Presentation (.ppt / .pptx), PDF File (.pdf), Text File (.txt) or view presentation slides online. NZULR, vol. But there would have, at least, to be some real reason to suppose the existence of a mistake before it could be incumbent on one party to question whether another party meant what he or she said. The fact that it may have been negligent is not a relevant factor in these proceedings.
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