He appeared distinctly uncomfortable during several phases of his cross-examination and his answers on crucial points were evasive and often vague.. His evidence in relation to the level and nature of communications he had with the second and third plaintiffs on the morning in question lacked candour. A steady stream of decisions from common law courts indicate a measured but nevertheless distinctly incremental willingness to extend the scope of the exception to not just actual knowledge, but deemed or constructive knowledge as well. COOTE, B. In Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd, the English Court of Appeal decided that Solle v Butcher was wrong to hold that there was an equitable doctrine of common mistakes. Theoretically the supply of information is limitless. HIGH COURT. 144 I find, in the alternative, that the plaintiffs, given each of their backgrounds, would in any event, each have separately realised and appreciated, before placing their purchase orders, that a manifest mistake had occurred even if no communications on the error had taken place between them. This is without basis. 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. He acknowledged having had conversations with the other plaintiffs about how much money we can sell the printer and how much we can make and about storage space as well as how many units we intend to buy. He was also a partner in what is described as a printing business. They are described by their counsel in submissions as risk takers, business minded and profit seeking. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. 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. The quintessential approach of the law is to, 106 In the Singapore context, the first port of call when confronted with issues of contract law is inevitably Professor Andrew Phangs treatise on. The E-Mail Acceptance Rule. 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. Scorpio: 13/01/20 01:33 as many as I can! Document Citado por Relacionados. Part of the training module included hands-on training with a new template for a Price Mass Upload function. 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). Mistakes are usually synonymous with the existence of carelessness on the part of the mistaken party. Between 3.13am and 4.00am the second plaintiff revisited the website four times placing four further orders for 20 laser printers each time. 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. The very foundations of predictability, certainty and efficacy, underpinning contractual dealings, will be undermined if the law and/or equity expands the scope of the mistake exception with alacrity or uncertainty. 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. 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. 155 The Internet has revolutionised commerce and radically altered the manner in which commercial interaction currently takes place. The recipient rule appears to be the logical default rule. There cannot be any legitimate expectation of enforcement on the part of the non-mistaken party seeking to take advantage of appearances. Neither party raised any objections. In a, WHILE surfing the Net at about 2am on Monday, MrTan Wei Teck stumbled upon an offer, 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. Imagine the effect of this negative publicity on your future sales! There are, however, other sound reasons to argue against such a rule in favour of the recipient rule. It had consciously not inserted any limits to the number of products a buyer could purchase again, quite clearly, to solicit more business. While they did not invariably admit that their searches were made prior to each of the respective transactions, it was plain that they did not tell the whole truth about, 149 It is clear from the authorities reviewed that such a contract, if entered into by a party with actual or presumed knowledge of an error, is void from the outset. Digilandmall - 502 SINGAPORE LAW REPORTS (REISSUE) [2005] 1 SLR(R Interestingly, Desmond also remarked to the first plaintiff that he wasnt greedy before I tok to u. Indeed, the time may have come for the common law to shed the pretence of searching for consideration to uphold commercial contracts. To export a reference to this article please select a referencing stye below: This selection of essays, case summaries and dissertations is of relevance to law students within the Commonwealth and for those students who are studying the Rule of Law from outside the Commonwealth . Despite the general views expressed in. Comments Published in English: [2004] 2 SLR 594; [2004] SGHC 71. Arrival can also be immaterial unless a recipient accesses the e-mail, but in this respect e-mail does not really differ from mail that has to be opened. There cannot be any legitimate expectation of enforcement on the part of the non-mistaken party seeking to take advantage of appearances. He confirmed through these searches that the usual price of the laser printers was in the region of US$2,000. He commenced practice in 2000 and currently practices with the law firm representing the plaintiffs in this action. While these contentions were well within the scope of the evidence adduced and their respective lines of cross-examination, they appeared to transgress their respective pleadings. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71 Suit No: Suit 202/2003/E Decision Date: 12 Apr 2004 Court: High Court Coram: V K Rajah JC Counsel: Tan Sok Ling, Malcolm Tan and Mohan Das Vijayaratnam (Tan S L and Partners) for plaintiffs, Philip Fong Yeng Fatt and Doris Chia Ming Lai (Harry Elias He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). , In unilateral mistake, only one of the parties is mistaken. The defendant has expressly pleaded unilateral mistake. 1 In the early hours of the morning of 13January 2003, six friends, the plaintiffs in this case, placed orders over the Internet for 1,606 sophisticated Hewlett Packard commercial laser printers (the laser printer(s)). I categorically reject their evidence in so far as it attempts to hermetically compartmentalise their knowledge and discussions. Looking for a flexible role? At 4.16am he placed another order for one laser printer, by credit card, on the HP website. . While the first plaintiff was the source of the information concerning the price posting, the second plaintiff actively communicated with all of the plaintiffs (save the sixth plaintiff), throughout the material period. It has been pithily said that the rules of procedure should be viewed as a handmaiden and not a mistress, to be slavishly followed. 71 The sixth plaintiffs position can be dealt with very briefly. In addition, each of the confirmatory e-mail responses states at the outset: [W]e will be calling you in the near future to deliver the products to the address shown below. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. They contended that the entire ICQ conversation, infused with such a jocular tone, should be disregarded. 120 The widening of jurisdiction to embrace a broad equitable jurisdiction could well encourage litigious behaviour and promote uncertainty. 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. The complainants argued that they were not aware that this price was a mistake and wanted the binding contract to be fulfilled. be rebutted" (per Salmon LJ in Jones v. Padavatton (1969)). Case name. The e-mails sent at 2.34am were also captioned Go load it now! Desmond intimated that the defendant would give vouchers or special deals as a matter of equitable compensation should it not honour the purchase orders. There are in this connection two schools of thought. He placed his first order for 50 units at about 2.58am, and his second order for another 50 units at 3.22am, again through the HP website. Media reports after the discovery of the mistake. 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. An FAQ guide to electronic contracts in Singapore - Lexology Quoine Pte Ltd v B2C2 Ltd: A Commentary - SSRN I found their attempts to play down the impact of the statements which they had, to all intents and purposes, willingly and deliberately made earlier, unconvincing. 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. 97 Different rules may apply to e-mail transactions and worldwide web transactions. This provision acknowledges that the essential framework of an electronic contract needs to be considered in the usual manner; in other words, principles of contract formation, consideration, terms and conditions, choice of law and jurisdictional issues need to be examined. This was presumably to render the training more lifelike. Certain Internet service providers provide the technology to inform a sender that a message has not been properly routed. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. 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. 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. Rules and case law pertaining to amendments are premised upon achieving even-handedness in the context of an adversarial system by: (a) ensuring that the parties apprise each other and the court of the essential facts that they intend to rely on in addressing the issues in controversy or dispute; (b) requiring that an amendment should be attended to in the usual course of events, at an early stage of the proceedings, to ensure that no surprise or prejudice is inflicted on or caused to opposing parties; (c) requiring careful consideration whether any amendments sought at a late stage of the proceedings will cause any prejudice to the opposing party. 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. There is therefore no pre-condition in law for a mistaken party to show an absence of carelessness to avail himself of this defence; the law precludes a person from seeking to gain an advantage improperly in such circumstances. As part of its business, it operates a website owned by Hewlett Packard (HP) at, 16 When the first plaintiff eventually succeeded in accessing the HP website, he immediately placed an order for 100 laser printers at about, 17 Having called the second and third plaintiffs at about. 72 To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. 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. Mutual promises, by all accounts, on the basis of existing case law, more than amply constitute consideration. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . When pressed as to whether he visited other websites, he said he could not confirm that one way or the other. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. He placed his first order for 50 units at about 2.58am, and his second order for another 50 units at 3.22am, again through the HP website. The court held that the acceptance has been completed once it is posted although here, the defendants actually did not receive the letter before they sold it to someone else. As the reports contradict portions of their present evidence, they have indirectly tried to cast doubt on the accuracy of the reports in so far as the reports referred to them. 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. 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. This is in contrast to the English position where after several decades, 125 The principal source of this view has been Lord DenningMR. [emphasis added]. Contract Acceptance by Email - LawTeacher.net They have a common interest in bridge and this helped to cement their friendship. I am not prepared, after full consideration, to assume that the reporters misquoted the facts. 41 The second plaintiff seems to have redefined the facts to achieve his objective in these proceedings. A-Z of Cases | Carlil & Carbolic - Law Study Resources When notified and satisfied that this transaction was successful as well, he placed a final order at 4.21am for ten laser printers on the HP website, charging this to his credit card. The non-mistaken partys appreciation that there is no real offer on the contracts literal terms undermines the basis of the objective theory and necessarily imports the lack of subjective intention on the part of the mistaken party. The text of the e-mail further reinforces the point. Chwee Kin Keong and Others v Pte Ltd PDF fileChwee Kin chwee kin keong v digilandmall high court. His communications with the fifth plaintiff, a lawyer, on the efficacy of the terms and conditions also lead to the ineluctable conclusion that he harboured anxieties whether this astoundingly good deal would be honoured when the error was discovered. Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . 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. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. FEATURE - Law Gazette Quoine was operating as a market-maker on their own platform. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. Counsel however contends that even if this e-mail were to be read literally, this should not affect the first plaintiffs own purchase that had taken place an hour earlier. 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. These orders were placed at a price of S$66 each, whereas the actual price was S$3,854 each. He would make some basic enquiries to ascertain whether there is anything faulty with the product in an attempt to seek an explanation for or understanding of the basis for the price discrepancy; he might alternatively try and ascertain whether perhaps the price differential is part of some spectacular promotional exercise. Forming an Agreement, Offer and Acceptance Flashcards | Quizlet Date of Verdicts: 12 April 2004, 13 January 2005. 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. 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. 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. He offered to buy a laser printer from Desmond at double the price, that is $132. 33 After his first order, the second plaintiff contacted the fourth and fifth plaintiffs informing them about the laser printers. He in effect forwarded the first plaintiffs e-mail to them. The unusual product description of 55 which the fourth plaintiff alone reluctantly acknowledged as weird and unusual would have been a red light signal that an error had occurred. If anything, certain portions of the affidavits raised even more doubts about the plaintiffs credibility. 3. While they did not invariably admit that their searches were made prior to each of the respective transactions, it was plain that they did not tell the whole truth about what they knew, how they knew it and when they knew it. The High Court of Australia in Taylor v Johnson purportedly relied on Solle v Butcher, Bell v Lever Brothers, Limited [1932] AC 161, McRae v Commonwealth Disposals Commission (1951) 84CLR 377, all cases of common mistake, to suggest that in unilateral mistake a contracting party cannot assert, by relying on his own mistake, that a contract is void, notwithstanding the issue is fundamental or known to the other side. This was borne out by the case of Chwee Kin Keong and Others v. Digilandmall.com Pte Ltd [2004] SGHC 71 where an autogenerated email with "Successful Purchase Confirmation" in its subject . http://www.epinions.com/HP_Color_LaserJet_4600_Series_Printer_Printers. 34 He also visited the Digilandmall website to familiarise himself with their standard terms and conditions. 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. The first plaintiffs purchase took place soon after the ICQ conversation with Desmond where Desmond had in no uncertain terms pitched the price of the laser printer between $3,000 to $4,000. It has been pointed out that the pedigree of these decisions is dubious, to say the least (see [128] and [129] infra). 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. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. I invited both parties to indicate if they wished to amend their pleadings. 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. There must be consensus ad idem. The fact that the acceptance was automatically generated by a computer software cannot in any manner exonerate the defendant from responsibility. 113 The English Court of Appeal in Commission for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259, a case of common mistake, imported the concept of Nelsonian knowledge and applied the framework of various categories of knowledge outlined by Peter GibsonJ in Baden v Societe Generale pour Favoriser le Developpement du Commerce et de lIndustrie en FranceSA [1993] 1 WLR 509. Contract Formation and Mistake in Cyberspace - the Singapore Experience 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. 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. He is currently employed as an accountant in an accounting firm, Ernst & Young. 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. 89 In the circumstances, I had little hesitation in allowing the amendments sought by the defendant. He is described by his counsel in submissions as a prudent and careful person. 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. He seemed to suggest that in a number of cases going as far back as Cundy v Lindsay (1878) 3App Cas 459, the contracts in issue therein should be treated as only being voidable in equity: see Solle v Butcher at 692, Lewis v Averay [1972] 1 QB 198 at 207 and dicta in Magee v Pennine Insurance Co Ltd [1969] 2 QB 507 at 514 where he opined that: A common mistake, even on a most fundamental matter, does not make a contract void at law: but it makes it voidable in equity. 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. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. The fourth plaintiff duly accessed the e-mail the second plaintiff had sent him pursuant to their conversation. From time to time they communicate with each other via the Internet and the short messaging system (sms). 156 The plaintiffs claims are dismissed. There were no such discussions with potential buyers. One reason for this is the eternal tension faced by courts and judges alike in seeking a just equilibrium between commercial certainty and justice in a particular case. This can be supported by the decision of the High Court of Singapore in the case of Chwee Kin Keong v. Digilandmall.com Pte Ltd, in which Judicial Commissioner Rajah argued that "the party who selects the means of communication should bear the consequences of any unexpected events" . On any objective construction, the presumed intention must be that in the context of its confirmatory content, the words call to enquire in the availability portion of the contract related to the timing of the delivery rather than being subject to physical availability of the laser printer or stock. 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]. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. 140 The defendant has however properly asserted that there was a unilateral mistake that vitiated all the contracts. A prospective purchaser is entitled to rely on the terms of the web advertisement. 38 The second plaintiff came across as intelligent and resourceful. There are two types of orders relevant: market orders and limit orders. Borneo United Sawmills Sdn Bhd v. MUI Continental Insurance Bhd (Marine insurance - Loss of goods - Claim for loss of goods under Marine Cargo Policy) [2009] 8 CLJ 217. V K Rajah JC. He classifies mistake in the following manner at 386: If attention is fixed merely on the factual situations, there are three possible types of mistake: common, mutual and unilateral. I must add that I did not really think this was necessary and subsequent events confirmed my perception. The court found that parties when . Evidence was given that if phone calls were indeed placed, they would from time to time limit the number of sales. Indeed he had conduct of significant phases of these proceedings on behalf of the plaintiffs. 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. To confine this exception to instances of fraud would make the concept of unilateral mistake redundant. Inflexible and mechanical rules lead to injustice. 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 . 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. 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. 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] supra). This can be before or during the trial, or after judgment or on appeal. 19 Later in the morning, at about 4.15am, the fourth plaintiff sent the following e-mail to the first plaintiff, copied to the second plaintiff only: Subject: Re: IMPT HP Colour LaserJet going at only $66!! 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. 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. Any information contained in this case summary does not constitute legal advice and should be treated as educational content only. 109 This cautious statement by Chitty needs to be carefully reconsidered in the context of recent developments in this area of law. Certainty in commercial transactions should not be trifled with, as this will inevitably affect how commercial and business exchanges are respected and effected. They assumed that to be the position. Landmark decision on unilateral mistake of fact in respect of the price of product listed on an online mall and the purchases made thereon . The point is, there is a chasm between a clarification amendment and a new or distinct issue being raised at a later stage. Singapore Court of Appeal. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. The law will have to organically adapt itself to respond to new challenges without compromising on certainty and fairness. I have carefully considered the issue of costs and have noted that the defendant had, in the process of mounting a root and branch attack on the plaintiffs claim, pursued some unmeritorious contentions. Mistakes are usually synonymous with the existence of carelessness on the part of the mistaken party. 64 The fifth plaintiff was vague and tentative in many crucial aspects of his evidence. Placing an advertisement on the Internet is essentially advertising or holding out to the world at large. 8 The proper description of the laser printer, HPC9660A Color LaserJet 4600, was, as a result of the accident, replaced by the numerals 55; while the numerals 66 replaced the correct price of the laser printer priced at $3,854 and the numerals 77 replaced the original corporate price of the laser printer priced at $3,448. 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.
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