Taking into account the nature of the claims, the conduct of these proceedings by the plaintiffs and how the case for the plaintiffs unravelled, it would not, all things considered, be appropriate to interfere with the normal order of costs which ought to follow the result. As for the common law on unilateral mistake, it is claimed that the acid test for its application is not satisfied. The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. Yong Pung HowCJ in Tribune Investment Trust Inc v Soosan Trading Co Ltd [2000] 3 SLR 405 at [40] opined: [T]he function of the court is to try as far as practical experience allows, to ensure that the reasonable expectations of honest men are not disappointed. He offered to buy a laser printer from Desmond at double the price, that is $132. The fact that it may have been negligent is not a relevant factor in these proceedings. Certain Internet service providers provide the technology to inform a sender that a message has not been properly routed. 116 The term snapping up was aptly coined by JamesLJ in Tamplin v James (1880) 15ChD 215 at 221. It is not in dispute that the defendant made a genuine error. The goods are not on offer but are said to be an invitation to treat. 107 As the law now stands, mistakes that are not fundamental or which do not relate to an essential term do not vitiate consent. In accordance with s15(1) of the ETA, acceptance would be effective the moment the offer enters that node of the network outside the control of the originator. I note that there have been powerful arguments made to the contrary. The web page entitled checkout order confirmation had a notation stating the earliest date on which we can deliver all the products to you is based on the longest estimated time of stock availability plus the delivery lead time. Slade, in a well reasoned article written not long after Solle v Butcher was decided, asserted: In general, it is submitted that there are no cases which support the proposition that in cases of unilateral mistake, V [the enforcing party] may obtain this relief where the contract is not void at law and there has been no misrepresentation. The first plaintiff introduced him to the other plaintiffs. Given that he left everything in the third plaintiffs hands, his legal position is, to that extent, identical to the third plaintiffs. There can be no other reasonable explanation. They were high-end commercial laser printers. The recipient rule is therefore more convenient and relevant in the context of both instantaneous or near instantaneous communications. 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. 132 It can be seen from this brief excursus into the law of mistake that this is an abstruse area. It is asserted that since mistake had not been pleaded as an equitable defence, equity cannot be invoked by the defendant. Landmark decision on unilateral mistake of fact in respect of the price of product listed on an online mall and the purchases made thereon . In common mistake, both parties make the same mistake. This can result from human interphasing, machine error or a combination of such factors. The case involved the sale of printers by the defendant at a price of S$66. The payment mode selected by the third plaintiff was cash on delivery. 99 Like the somewhat arbitrary selection of the postal rule for ordinary mail, in the ultimate analysis, a default rule should be implemented for certainty, while accepting that such a rule should be applied flexibly to minimise unjustness. 76 On Monday, 13January 2003, at about 9.15am, an employee of the defendant received a call from a prospective customer inquiring whether the defendant was aware of the posted price of $66 for the laser printers on the HP website. The recipients of this e-mail included the second, fourth, fifth plaintiffs and Tan Cheng Peng, the third plaintiffs girlfriend. The law ought to take a practical approach in dealing with such cases if it appears that by exercising reasonable care the true facts ought to be known. In the context of the present proceedings, the extra-judicial observations of Lord Steyn in Contract Law: Fulfilling the Reasonable Expectations of Honest Men (1997) 113LQR 433 at 433 are particularly apposite: A thread runs through our contract law that effect must be given to reasonable expectations of honest men. If stock of a product has been exhausted, a prospective purchaser cannot sue for specific performance or damages as he has merely made an offer that has not been accepted by the merchant. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. As such, I would strongly appeal to you to reconsider your decision. 56 He vacillated throughout his evidence between a propensity to embellish his evidence on the one hand and to hold back on the other. Some of the plaintiffs appeared rather coy or ignorant in this regard but I did not find their performance believable. 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. 16 When the first plaintiff eventually succeeded in accessing the HP website, he immediately placed an order for 100 laser printers at about 2.05am, charging the transaction to his credit card. Parties Chwee Kin Keong & Others v. Digilandmall.com Pte Ltd. Decision date 12/04/2004. . 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. No rights can pass to third parties. 63 It is pertinent he too made web searches using the Google search engine. It would be illogical to have different approaches for different product sales over the Internet. Take a look at some weird laws from around the world! Promotions would be indicated by a P inside a yellow circle next to the product in question. These statements are not to be interpreted as a clarion call to rewrite commercial agreements because of a partys unreasonable or ignoble behaviour. 150 The plaintiffs have contended that this court ought to follow the decision in Taylor v Johnson and hold that the contract is not void under common law but voidable only in equity. The argument is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void. 60 Prior to placing his order, he was again contacted by the second plaintiff. 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. 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. David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch) Dunlop v Higgins (1848) 1 HLC 381. There was no element of surprise or prejudice to the plaintiffs as the points raised had already been developed by the defendant and addressed by the plaintiffs. Chwee Kin Keong vs Digilandmall.com - Free download as Powerpoint Presentation (.ppt / .pptx), PDF File (.pdf), Text File (.txt) or view presentation slides online. 70 The third plaintiff proceeded to place orders on behalf of the sixth plaintiff on the HP website. 68 Yeow Kinn Oei is 29 years old and the brother of the third plaintiff. A contract is normally concluded when an offer made by one party (the offeror) is accepted by the party to whom the offer has been made (the offeree). 77 Soon after the defendant informed the plaintiffs that they did not intend to deliver the laser printers, the plaintiffs took their claims to the press. After placing his second order, he admitted making further searches on the Internet to fortify my view that the price of the $66 per printer was not a mistake He was also the only plaintiff who placed an order on the Digilandmall website. Decisions cannot be reconciled and expressions, terminology and phraseology in different decisions mean different things to different courts and even judges within the same judicial systems. 103 The amalgam of factors a court will have to consider in risk allocation ought to include: (a) the need to observe the principle of upholding rather than destroying contracts, (b) the need to facilitate the transacting of electronic commerce, and. Their reference to arbitraging was a nebulous fig leaf designed to legitimise their conduct in a cloak of legal and commercial respectability. Where either mutual or unilateral mistake is pleaded, the very existence of agreement is denied. The fifth plaintiff was also a member of this bridge group. Both parties expressed that they wished to effect amendments to mirror evidence that had been adduced in the proceedings. Therefore, administrative law encompasses Is the Right to Privacy Adequately Protected? Websites often provide a service where online purchases may be made. - This is also the position as regards friends: see Coward v. MIB (1963). Unilateral Mistake at . 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. This was summarily resolved. 54 The fourth plaintiff admits that he had entertained the idea at the material time that the price posting could have been an error. He appeared to be consummately familiar with Internet practices and was forced to concede that he thought it was weird and unusual when he saw the number 55 on the relevant webpages in place of the actual product description. In the final analysis, it would appear that the likely existence of an internal error in pricing was clearly within his contemplation. Administration law is the actions made by a government, which adversely affects an individual. The phrase call to enquire, it is contended, was in effect a condition precedent. That said, it also offers new avenues of evidential proof offering intimate insights into realtime thought processes and reactions. It stands to reason that if a party shuts its eyes to the obvious, the party is being neither honest nor reasonable, and ought to be affixed with knowledge. It does not purport to regulate e-commerce but attempts to facilitate the usage of e-commerce by equating the position of electronic records with that of written records, thus elevating the status of electronic signatures to that of legal signatures. 28 In any event, the first plaintiffs commercial background and business experience alone would have amply alerted him to the likelihood of the pricing being a mistake, even without his conversation with Desmond. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. 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. This is a case about predatory pack hunting. Alarm bells would have sounded immediately. I have found that the plaintiffs had at all material times knowledge of or, at the very least, a real belief that an error had been made by the defendant in the price posting. Soon after, the second, third and fifth plaintiffs took their claims to the media. It has been a fertile source of academic debate, but in practice it has given rise to a handful of cases that have merely emphasised the confusion of this area of our jurisprudence. As a matter of fairness, allowing amendments at a late stage should usually go hand in hand with granting leave to the other party to adduce further evidence, if necessary. The other school of thought views the approach outlined earlier with considerable scepticism. It is germane to observe that none of the cases purporting to follow Solle v Butcher [1950] 1 KB 671 have with any degree of clarity defined the parameters of equitable mistake in contradistinction to a common law mistake. Upon accessing the Digilandmall website and confirming that the printer was offered there at $66 as well, he placed a further order for 25 laser printers through that website at about 3.29am. The plaintiffs also assert in their submissions that if contracts are only upheld if parties acted honourably there would be very few contracts left standing in the commercial world. He is also part of the Bel-Air network. Chwee Kin Keong v Digilandmall.com Pte Ltd,( [2005]SGCA 2 ) . 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. Desmond: 13/01/20 01:33 how many u intend to get? This is essentially a matter of language and intention, objectively ascertained. The individualistic ethic seeks to maximise individual goals and the community ethic seeks to set norms for commercial morality and to ensure that fair dealing and community cohesiveness are observed and maintained. Desmond further informed the first plaintiff that the sale price of each laser printer was in the region of $3,000 to $4,000. [emphasis added]. With reference to the judgement, the case explores pricing mistakes by online stores. It was the defendants computer system. The law may not imply a condition precedent as to the availability of stock simply to bail out an Internet merchant from a bad bargain, 104 The creases over the theoretical approach to adopt in determining the existence of contracts have for some time now been decisively ironed out in favour of the objective theory. There cannot be any legitimate expectation of enforcement on the part of the non-mistaken party seeking to take advantage of appearances. There must be consensus ad idem. 75 Each of the automated confirmatory e-mail responses carried under Availability of product the notation call to enquire. This is without basis. 106 In the Singapore context, the first port of call when confronted with issues of contract law is inevitably Professor Andrew Phangs treatise on Cheshire, Fifoot and Furmstons Law of Contract (2nd Singapore and Malaysian Ed, 1998). 2. He is described by his counsel in submissions as a prudent and careful person. This is a disingenuous contention that desperately attempts to palliate their conduct in the subject transactions. 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.)]. Consideration was less than executory and non-existent. The defendants wanted to sell some hare skins to the plaintiffs. He seemed to suggest that in a number of cases going as far back as, He somewhat muddied the authority of his observations by apparently accepting in, 126 The Australian courts appear to have relied on the views of Lord DenningMR in, 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. 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. The contract stands according to the natural meaning of the words used. 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. Introduction The decision of V.K. Thus the task of ascertaining whether the parties have reached agreement as to the terms of a contract can involve quite a complex amalgam of the objective and the subjective and involve the application of a principle that bears close comparison with the doctrine of estoppel. A real product number HP9660A was inserted in the new template as the prototype for which fictional prices were to be changed on the three relevant websites. He conducted the searches to ascertain what the laser printers true price was. CLARK, B. The complainants argued that they were not aware that this price was a mistake and wanted the binding contract to be fulfilled. 6 On Wednesday, 8January 2003 between 3.00pm and 4.00pm, DILs employees conducted a training session at the defendants premises. We are, Our conclusion is that it is impossible to reconcile, In this case we have heard full argument, which has provided what we believe has been the first opportunity in this court for a full and mature consideration of the relation between, 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, 130 It can be persuasively argued that given (a)the historical pedigree of the cases, (b)the dictates of certainty and predictability in the business community and (c)the general acceptance of the existence of distinct common law rules, it is preferable not to conflate these concepts. 42 Mark Yeow Kinn Keong has a Bachelor of Science (Economics) degree from the University of London. 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. 25 The mass e-mail at 2.58am is cursorily dismissed by counsel for the plaintiffs as poor use of language that ought not to be taken literally in light of the early hours of the morning. The e-mails sent at 2.34am were also captioned Go load it now! As part of its business, it operates a website owned by Hewlett Packard (HP) at http://www.buyhp.com.sg (the HP website) where only HP products are sold. Even if it were to be held that there is now a general test of unconscionability applicable to all types of mistake, the plaintiffs contentions will not take them far. Yong Pung HowCJ in, [T]he function of the court is to try as far as practical experience allows, to ensure that the, Tan Sok Ling, Malcolm Tan and Mohan Das Vijayaratnam (Tan S L and Partners) for plaintiffs; The fourth plaintiffs single transaction with the Digilandmall website was confirmed by a similar automated response stating Successful Purchase Confirmation from Digilandmall. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. This constituted more than a quarter of the total number of laser printers ordered. While commercial entities ought not to be given a licence to relax their vigilance, the policy considerations in refusing to enforce mistaken agreements militate against attaching undue weight to the carelessness involved in spawning the mistake. Entores Ltd v Miles Far East Corp. [1955] 2 Q.B. The first issue dealt with references made by the plaintiffs to certain embargoed material. In New Zealand, the legislature enacted the Contractual Mistake Act 1977. Has an agreement been reached or not? Desmond: 13/01/20 01:44 if they dont honor it Scorpio: 13/01/20 01:45 sell me one lah name your price ;-) sue them lor , Desmond: 13/01/20 01:45 I think they will give vouchers or special deals. Desmond: 13/01/20 01:40 if any friend got extra printer u want? 90 After leave was granted to amend the defence, each of the plaintiffs filed a further short affidavit refuting knowledge of the mistake relating to pricing. 136 First, it was suggested that no contracts had been formed as all the contracts were subject to availability and that a failure to adhere to the directive call to enquire prevented the contracts from coming into existence. Be that as it may, the fifth plaintiff, soon after he received MsTohs research, shared the information with the second and third plaintiffs. Other Jurisdictions. 1.47K subscribers Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] Facts The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from. In the Singapore context a similar approach has been adopted by the Court of Appeal in Aircharter World Pte Ltd v Kontena Nasional Bhd [1999] 3 SLR 1 at [30] and [31], and Projection Pte Ltd v The Tai Ping Insurance Co Ltd [2001] 2 SLR 399 at [15]. His credibility on the material points was dubious, at best. 38 The second plaintiff came across as intelligent and resourceful. 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. The appellants featured prominently because of the size of their orders. 17 Having called the second and third plaintiffs at about 2.00am, the first plaintiff also sent them, via e-mail, a weblink of the relevant HP website pages. . Established common law principles, in the arena of mistake, ought not be trifled with unless they are so obviously anachronistic and ill-suited to commercial and legal pragmatism. Digilandmall.com Pte Ltd [2004] 2 SLR(R) 594, Rajah JC (as . Section13 of the ETA deems that a message by a partys automated computer system originates from the party itself. Added to his own purchases of 760 units, he was effectively responsible for the purchase of 1,090 laser printers. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. 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. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. Both parties displayed a considerable amount of imagination in dealing with them. Abstract The decision of V.K. After receiving the e-mail from the first plaintiff, he visited the relevant HP website pages. In the light of that consideration we can see no way that Solle v Butcher can stand with Bell v Lever Bros Ltd. ! with its importance set at high. Computer glitches can cause transmission failures, garbled information or even change the nature of the information transmitted. The effect of Solle v Butcher [1950] 1 KB 671 is not to supplement or mitigate the common law: it is to say that Bell v Lever Bros Ltd was wrongly decided. After hearing their evidence, observing them and considering the submissions made on their behalf, there was no doubt in my mind that they were fully conscious that an unfortunate and egregious mistake had indeed been made by the defendant. Sometimes this is made explicit by judges; more often it is the implied basis of the courts decision. In the eyes of Singapore law, purported contracts entered into in similar circumstances are void ab initio. 120 The widening of jurisdiction to embrace a broad equitable jurisdiction could well encourage litigious behaviour and promote uncertainty. I was neither impressed nor convinced. E-mails are processed through servers, routers and Internet service providers. u think this is the 1970s?? 9 The defendants assertion that Samuel Teo had neither the authority nor the intention to make any alterations to the laser printers price is now accepted by the plaintiffs. His Internet research alone would have confirmed that. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. It is simply inconceivable that when he entered into the purchase transaction, he did not know, or at the very least did not have a real and abiding belief that the price posting was an error. V K Rajah JC. They have a common interest in bridge and this helped to cement their friendship. This final mass e-mail only reinforces my view that the first plaintiff consistently and continuously entertained the view that the price posting on the HP website was a mistake. Yet in other aspects, he could recollect, with crystal clear precision and clarity, details of what had transpired. The text of the e-mail further reinforces the point. First, it is clear that the line of Australian and Canadian cases have broadened their equitable jurisdiction on the strength of dicta attributable principally to Lord Denning. This is clearly a mistake as they could not possible be sold for an amount that in a commercial situation. Chwee Kin Keong and others v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502; [2005] SGCA 2. The price of the laser printer, prior to 3.36pm on 8January 2003, was stipulated as $3,854 (exclusive of GST) on both the Digilandmall and HP websites (the websites), and as $3,448 on the Digiland commerce website. This e-mail was sent only after the first plaintiff had made his own Internet searches on the pricing of the laser printer. The case of, The offer was wrongly expressed, and the defendants by their evidence, and by the correspondence, have satisfied me that the plaintiff, 116 The term snapping up was aptly coined by JamesLJ in, 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. Scorpio: 13/01/20 01:25 ok but how come got such a good deal? However, if the defendant did not have stock, it would immediately call the supplier and procure the products for the end-user. Palm tree justice will only serve to inject uncertainty into the law. Doctrines and Institutions of Responsible Government. In light of these general observations, I now address the law on unilateral mistake. 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. The sender will usually receive a prompt response. In doing so, they appear to have also conflated equitable and common law concepts. In Associated Japanese Bank (International) Ltd v Credit du NordSA [1989] 1 WLR 255 at 266, Lord DenningMRs views were doubted and described as reflecting an individual opinion by SteynJ (as he then was). This may be too high a price to pay in this area of the law. Delivery was merely a timing issue. Their In the Singapore context a similar approach has been adopted by the Court of Appeal in, 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. On the issue of his actual knowledge and communications with the other plaintiffs at the material time, I found his evidence unsatisfactory. Ltd} has the makings of a student's classic for several rea sons: it presents a textbook example of offer and acceptance; it is set in the context He appears to have been in constant communication with the second plaintiff and to have received and read the mass e-mail from the first plaintiff after he placed his first purchase order.
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