Between 3.13am and 4.00am the second plaintiff revisited the website four times placing four further orders for 20 laser printers each time. I granted leave to both parties to file applications to amend the pleadings. As this is a critical issue, it is imperative that each of their positions be carefully evaluated. 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, second and third plaintiffs have been friends for a long time and are bound by common business interests. Having ascertained that the laser printer was being advertised at $66, he decided to undertake further online searches through Yahoo.com and Ebay.com. He received this information through an sms message. 87 It appeared to me that the extract from Singapore Civil Procedure 2003 relied on by the plaintiffs was blindly lifted from earlier editions of the English White Book without any consideration as to how it dovetails with the present procedural climate. It seems to me that he was trying to tailor his evidence to fit neatly within the legal parameters of the plaintiffs case. He holds an accounting degree from NTU. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. The plaintiffs refute that the error exonerates the defendant; they insist that a concluded contract is sacrosanct and must be honoured. He then zealously sent at about 2.58am, an e-mail to 54 persons, all of whom were friends and/or business associates. 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. Mistakes that negative consent do not inexorably result in contracts being declared void. To assert that as a rule, leave to amend particulars will be refused, is both illogical and incorrect. Again he attempted to minimise the impact of these observations by saying his subsequent searches erased all such doubts. 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. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004 . This is an area that needs to be rationalised in a coherent and structured manner. 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. He said he had by then discovered from his Internet searches that the price of the laser printer was in the region of $3,000. The defendant has expressly pleaded unilateral mistake. 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. Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502: [2005] SGCA 2 Context: This Case deals with the issue of unilateral mistake. There was also no indication that the product was being sold on promotion. 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. *You can also browse our support articles here >. What amounts to snapping up is a question of degree that will incorporate a spectrum of contextual factors: what is objectively and subjectively known, the magnitude of the transaction(s), the circumstances in which the orders are placed and whether any unusual factors are apparent. This gives their courts a broad and elastic jurisdiction to deal with commercially inappropriate behaviour. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. He too affirmed from his searches that the normal price of the laser printer was in the region of US$2,000. 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. Scorpio: 13/01/20 01:25 ok but how come got such a good deal? 59 Upon duly accessing the HP website through the hyperlink sent to him by the second plaintiff, the fifth plaintiff ascertained that the laser printer was priced at $66. He tried to convey the impression that it never struck him that a mistake in the price posting of the laser printer could have occurred. The E-Mail Acceptance Rule. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004] SGHC 71. This is clearly a mistake as they could not possible be sold for an amount that in a commercial situation. The modern approach in contract law requires very little to find the existence of consideration. Limit orders: order to be executed only when the desired price is available. 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. Amendments after conclusion of submissions. MrTan said: As long as we get out [sic] equitable compensation, we should be able to accept lesser terms, but thats just under consideration as well.. by the earlier decision of Chwee Kin Keong v Digilandmall.com [2005] 1 SLR(R) 502, where the Court of Appeal recognised the doctrine of unilateral mistake in equity, departing from the English position in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679; [2002] 3 WLR 1617; [2002] 4 All ER 689. The defendant, on the other hand, contends that the law should not penalise a party who has unwittingly and genuinely made a unilateral mistake which was known or ought to have been known by the plaintiffs. 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. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. 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. 11 The single most controversial issue in these proceedings is the knowledge possessed and/or belief entertained by each of the plaintiffs when they entered into each of the transactions for the purchase of the laser printers. 81 Plaintiffs counsel thereafter responded somewhat curiously. In any event, it does not appear that she disclosed the whole truth of what she knew. 56 He vacillated throughout his evidence between a propensity to embellish his evidence on the one hand and to hold back on the other. NZULR, vol. Though both of them admit to having had discussions about the website terms and conditions governing the purchases, they deny that there was any discussion between them on even the possibility of an error having taken place. It appears to suggest that even if an offer is snapped up, the contract is not void. 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. The case involved the sale of printers by the defendant at a price of S$66. 125 The principal source of this view has been Lord DenningMR. The programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. Philip Fong Yeng Fatt and Doris Chia Ming Lai (Harry Elias Partnership) for defendant, Chwee Kin Keong; Tan Wei Teck; Yeow Kinn Keong Mark; Ow Eng Hwee; Tan Chun Chuen Malcolm; Yeow Kinn Oei
Adopting an objective standard, executory contracts have in fact been entered into and concluded between the parties. 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. Having noted all this, I am nevertheless inclined towards the views expressed in the Great Peace Shipping case for the reasons articulated by Lord PhillipsMR. . It deals with the process rather than the substance of how to divine the rule. 12 The plaintiffs both collectively and individually maintained adamantly that while they thought that the price of $66 appeared to be a good deal they did not think that the website prices had been mistakenly placed or inserted. This may have created formatting or alignment issues. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. The rationale for this is that a court will not sanction a contract where there is no consensus ad idem and furthermore it will not allow, as in the case of unilateral mistake, a non-mistaken party to take advantage of an error which he is or ought to be conscious of. 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. Often the essence of good business is the use of superior knowledge. It is postulated by many of the leading treatises that equity has a broad church incorporating a more elastic approach and a court of equity may rescind a contract, award damages or, in limited circumstances, fashion a remedy, to suit the justice of the matter. It is, in large measure, determined by making an objective appraisal of the exchanges between the parties. 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. They were selling a HP laser printer and an employee accidently made a mistake as to the price of the printer on their website. 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 is without basis. 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)). There were altogether 1,008 purchase orders for the laser printers placed by 784 individuals between 8 and 13January 2003. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. In the eyes of Singapore law, purported contracts entered into in similar circumstances are void ab initio. No cash had been collected. This was summarily resolved. Web Communication: A Review Of Chwee Kin Keong And Others v. Digilandmall.com pte ltd by Rokiah Kadir [2009] 8 CLJ xxi. The other school of thought views the approach outlined earlier with considerable scepticism. The contract was held to be void because there was no consensus on the terms. Why? I reject this. I hope by the time you see this email, the price is still at S$66.00 coz they might change it anytime. Furthermore, unlike a fax or a telephone call, it is not instantaneous. Having ascertained the true market price, it would have appeared crystal clear, given the huge disparity in the pricing, that a manifest mistake had occurred. 100 There is however another statute that ought to be taken into consideration in determining the appropriate default rule in e-commerce transactions. A typical but not essential defining characteristic of conduct of this nature is the haste or urgency with which the non-mistaken party seeks to conclude a contract; the haste is induced by a latent anxiety that the mistaken party may learn of the error and as a result correct the error or change its mind about entering into the contract. v . There are in this connection two schools of thought. From time to time there will be cases where this is an overriding consideration. Has an agreement been reached or not? The fourth plaintiff duly accessed the e-mail the second plaintiff had sent him pursuant to their conversation. In principle, there is no difference between amending particulars and amending say, a cause of action, defence or any other part of substance in a pleading. 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. This may be too high a price to pay in this area of the law. In light of these general observations, I now address the law on unilateral mistake. Thus, 119 It is apparent from this overview that the Canadian courts have integrated through their equitable jurisdiction the concept of common law mistake within the rubric of unconscionability. Interestingly, Desmond also remarked to the first plaintiff that he wasnt greedy before I tok to u. Gill & Duffus Landauer Ltd v London Export Corp GmbH [1982] 2 Lloyd's Rep. 627. A viewer from any part of the world may want to enter into a contract to purchase a product as advertised. Added to his own purchases of 760 units, he was effectively responsible for the purchase of 1,090 laser printers. 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. In these circumstances we can see no option but so to hold. 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. It will firstly discuss the fact that such a tort Our academic writing and marking services can help you! 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!! 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. I note that there have been powerful arguments made to the contrary. A contract will not be concluded unless the parties are agreed as to its material terms. There must be consensus ad idem. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. 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. 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. 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. Civil Procedure Pleadings . Be that as it may, the fifth plaintiff, soon after he received MsTohs research, shared the information with the second and third plaintiffs. Counsels approach is flawed. At the very least, it has been forcefully asserted that even when a mistake does not result in voiding a contract through the application of common law principles, there remains an independent doctrine of mistake founded in equity which justifies judicial intervention. 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 some unusual circumstances where a unilateral mistake exists, the law can find a contract on terms intended by the mistaken party. It is an important subject for the future development of English contract law. Rather, in my opinion, constructive knowledge alone will suffice to invoke equitys conscience. Altogether, the second plaintiff purchased 180 units, opting for cash on delivery as the payment mode. All previous discussions and negotiations between the parties proceeded on the basis of the price being fixed at so much per piece. 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. Samuel Teo had used all these notional numerals on the training template. The sixth plaintiff told his brother to order some for him, without specifying how many laser printers he wanted or how he intended to pay for the laser printers. The caption in each of the e-mails Successful Purchase Confirmation from HP online says it all. 110 In OT Africa Line Ltd v Vickers Plc [1996] 1Lloyds Rep 700 at 703, ManceJ held that the objective theory ought not to apply if a party had knowledge that a mistake had occurred: The question is what is capable of displacing that apparent agreement. 131 In a number of cases, including the present, it may not really matter which view is preferred. com Pte Ltd30 that was primarily about unilateral mistake. 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. 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. They deny having had any communications amongst themselves about the possibility, let alone probability, that the price posting on the website could have been a mistake. 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. The issue could be critical where third party rights are in issue as in. 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. The issue in this case was whether the pricing was a mistake and if the contract would be fulfilled. 10 News of the rather extraordinary laser printer pricing began to spread like wildfire within the local Internet community. Abstract The decision of V.K. David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch) Dunlop v Higgins (1848) 1 HLC 381. 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. This has clearly caused much confusion in the common law jurisdictions. Certain Internet service providers provide the technology to inform a sender that a message has not been properly routed. 83 The defendant maintained that there was no element of surprise and/or prejudice arising from the amendments. 78 In a Channel NewsAsia report datelined 15January 2003, it was reported that: Two of the customers, Mark Yeow and Malcolm Tan, have already spoken to their lawyers. 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. , In unilateral mistake, only one of the parties is mistaken. 681) when the court had to decide the moment of contr act formation by post. Court reference 202 of 2003. This is in contrast to the English position where after several decades Hartog v Colin & Shields still remains the locus classicus. There is one important exception to this principle. . They have a common interest in bridge and this helped to cement their friendship. The unconstrained exchange that followed between the two is both revealing and compelling. 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. 121 While my views here are not central to my decision, the plaintiffs have adverted to this relationship in a misguided attempt to derail the defence on an arid pleading technicality. Chwee Kin Keong v Digilandmall.com Pte Ltd. Case Nos: Suit 202/2003/E (for the first instance), CA/30/2004 (for the appeal) in the High Court of Singapore (at first instance), Singapore Court of Appeal. 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. 44 He made his first purchase of ten laser printers at about 2.42am. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. His girlfriend, Tan Cheng Peng, is also a director and shareholder of the company in which he has a stakeholding with the first and second plaintiffs. There was a promise to pay made by the plaintiffs in exchange for the delivery of the requisite laser printers. One circumstance falling clearly within the equitable jurisdiction of the Court to relieve against mistake is that where one party, knowing of the others mistake as to the terms of an offer, remains silent and concludes a contract on the mistaken terms: It is not necessary to prove actual knowledge on the part of the non-mistaken party in order to ground relief, as, In summary therefore, the equitable jurisdiction of the Courts to relieve against mistake in contract comprehends situations where one party, who knows or ought to know of anothers mistake in a fundamental term, remains silent and snaps at the offer, seeking to take advantage of the others mistake. An e-mail, while bearing some similarity to a postal communication, is in some aspects fundamentally different. The most recent and authoritative pronouncement in this area (per Lord Phillips of Worth Matravers in Shogun Finance Ltd v Hudson [2003] 3 WLR 1371 at [123]) states: 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). This judgment text has undergone conversion so that it is mobile and web-friendly. 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 . 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. They assert that spending only $105,996 to procure laser printers with an actual market value of $6,189,524 is wholly irrelevant; they are entitled to a good bargain. The decision of V.K. 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. In doing so, they appear to have also conflated equitable and common law concepts. Notwithstanding, the defendant does not take issue with this as the sixth plaintiffs orders were received and the appropriate automated responses generated. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . The recipients of this e-mail included the second, fourth, fifth plaintiffs and Tan Cheng Peng, the third plaintiffs girlfriend. 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
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