[emphasis added]. He worked in an accounting firm, Ernst and Young, for three years. Desmond: 13/01/20 01:33 how many u intend to get? This thread helps to rationalise the development of the common law but ought not to be viewed as supporting the existence of a general test of commercial morality tantamount to the test of unconscionability invoked by equity. 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). He claims he then accessed the US HP website either through a Google web search engine or by abbreviating the url of the HP website. , In unilateral mistake, only one of the parties is mistaken. It is not in dispute that the defendant made a genuine error. Failure to do so could also result in calamitous repercussions. Rather, in my opinion, constructive knowledge alone will suffice to invoke equitys conscience. 131 In a number of cases, including the present, it may not really matter which view is preferred. The decision of V.K. Upon completing this sequence, each of the orders placed by the plaintiffs was confirmed by automated responses from the respective websites stating Successful Purchase Confirmation from HP online. But it is difficult to see how that can apply here. 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. 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. Administration law is the actions made by a government, which adversely affects an individual. 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. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. 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. Slade, in a well reasoned article written not long after, 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in, 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. This is one of the first prominent case that deals with the issue of web based contract. 143 The stark gaping difference between the price posting and the market price of the laser printer would have made it obvious to any objective person that something was seriously amiss. The caption in each of the e-mails Successful Purchase Confirmation from HP online says it all. Counsels approach is flawed. Digilandmall.com Pte Ltd. Any information contained in this case summary does not constitute legal advice and should be treated as educational content only. They were clearly anxious to place their orders before the defendant took steps to correct the error. Transactions over websites are almost invariably instantaneous and/or interactive. Consideration was less than executory and non-existent. Solicita tu prueba. The most that the court can do in these circumstances is to refuse E [the other party, who wants the contract held void] specific performance, which lies in the discretion of the court and will probably be refused where E has been guilty of some degree of sharp practice. 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. 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. 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. Defence counsel indicated that he wanted to regularise the position on the agency relationship between third and sixth plaintiffs which had been thrashed out during cross-examination; he also wished to plead additional particulars of the respective plaintiffs actual knowledge of or belief in a mistake having occurred, which had emerged both before and during the hearing. Chwee Kin Keong vs Digilandmall.com Scorpio: 13/01/20 01:25 ok but how come got such a good deal? Articles 11 (1) Country Singapore. His own counsels description of him as careful and prudent only serves to corroborate this. 81 Plaintiffs counsel thereafter responded somewhat curiously. 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. 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). There is no question, however, that he placed the orders, that these orders were received by the HP website and that the same automated response sent to the other plaintiffs was sent out to him. 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. She opined that situations where unilateral mistake had been considered were those involving fraud or a very high degree of misconduct. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. Case law chwee kin keong v digilandmallcom pte ltd. School Nanyang Technological University; Course Title ACC 1301; Uploaded By saint_huimin. 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. Chwee Kin Keong v Digilandmall.com Pte Ltd Case No.s Suit 202/2003/E (for the first instance), CA/30/2004 (for the appeal) Name and level of courts High Court of Singapore(at first instance), Singapore Court of Appeal Member of courts VK Rajah, JC (for the first instance), Chao Hick Tin JA, Kan Ting Chiu J, Yong Pung How CJ 118 The Canadian courts have been the most active common law courts explicating and developing this area of the law. He was aware that the laser printers were targeted for business use. It can be persuasively argued that e-mails involving transactions embraced by the Convention are only effective on reaching the recipient. In Chwee Kin Keong v . It would be illogical to have different approaches for different product sales over the Internet. 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. 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. Date of Verdicts: 12 April 2004, 13 January 2005. Desmond: 13/01/20 01:40 if any friend got extra printer u want? Who bears the risk of such mistakes? 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. 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. 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. The plaintiffs and the defendant later reached an agreement to dispense with any further oral evidence, save for that of Tan Cheng Peng. The other knows, or must be taken to know, of his mistake. There can be no other reasonable explanation. The elements of an offer and acceptance are, 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. They even discussed the possible scenario of the defendant not honouring the transactions. The defendant has expressly pleaded unilateral mistake. 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. The defendant even had its terms and conditions posted on its website. It argues that the decision is both fair and economically grounded, and proposes an alternative view to that offered by classical contract law - one that sees fairness intertwined 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. The second plaintiff made an enquiry as to the terms and conditions governing purchases through the HP website while the fifth plaintiff was perusing the conditions of the Digilandmall website. The fifth plaintiff, even if he had not been alerted by the second plaintiff, would have instinctively appreciated the existence of a manifest error without any prompting whatsoever. That is sufficient in these circumstances. 20 Annexed to this e-mail was the first plaintiffs earlier mass e-mail. 50 Ow Eng Hwee, 29 years old, is another network marketing entrepreneur. 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. 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. It should be noted that while the common law jurisdictions continue to wrestle over this vexed issue, most civil law jurisdictions lean towards the recipient rule. 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. 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. Basic principles of contract law continue to prevail in contracts made on the Internet. 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. 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. Her evidence was inconsequential and did not assist the plaintiffs. It is essential that the law be perceived as embodying rationality and fairness while respecting the commercial imperative of certainty. Given its global reach and ever changing technological advancements, Internet usage will pose a myriad of issues for resolution. 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. 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. 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. 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. After all, what would he do with 100 obsolete commercial laser printers? 145 If the price of a product is so absurdly low in relation to its known market value, it stands to reason that a reasonable man would harbour a real suspicion that the price may not be correct or that there may be some troubling underlying basis for such a pricing. Therefore, administrative law encompasses Is the Right to Privacy Adequately Protected? The e-mails had all the characteristics of an unequivocal acceptance. In other words, he really wanted to ascertain the true price of the laser printer. Amendments after conclusion of submissions. (c) the need to reach commercially sensible solutions while respecting traditional principles applicable to instances of genuine error or mistake. case concerning the purchase of laser printers from an online retailer, Chwee Kin Keong v Digilandmall 76 : To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. This contention is wholly untenable. I categorically reject their evidence in so far as it attempts to hermetically compartmentalise their knowledge and discussions. The price for equitable justice is uncertainty. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. 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. We can understand why the decision in Bell v Lever Bros Ltd did not find favour with Lord DenningMR. An equitable jurisdiction to grant rescission on terms where a common fundamental mistake has induced a contract gives greater flexibility than a doctrine of common law which holds the contract void in such circumstances. Further, the character of the mistake was such that any reasonable person similarly circumstanced as each of the plaintiffs would have had every reason to believe that a manifest error had occurred. The programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. V K Rajah JC. This is without basis. The appellants featured prominently because of the size of their orders. 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679, a case of common mistake. He received this information through an sms message. Section13 of the ETA deems that a message by a partys automated computer system originates from the party itself. The reason for this inconsistent conduct surfaced later. As this is a critical issue, it is imperative that each of their positions be carefully evaluated. There are two types of orders relevant: market orders and limit orders. This is in contrast to the English position where after several decades, 125 The principal source of this view has been Lord DenningMR. Though he initially denied this in cross-examination, he had to accept this when confronted with his own e-mail as irrefutable evidence. There are in this connection two schools of thought. He had left everything to his brother. 63 It is pertinent he too made web searches using the Google search engine. 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. Unlike instances of fraud, where it is said fraud unravels the existing contract, in instances of unilateral mistake, the very existence of the contract is negatived there is no consensus. 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. I would not however invariably equate the required conduct with fraud. Inflexible and mechanical rules lead to injustice. Caveat emptor remains a cornerstone of the law of contract and business relationships. 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. Phang, Controversy in Common Mistake [2003] Conv 247; Reynolds, Reconsider the Contract Textbooks (2003) 119LQR 177. They are tainted and unenforceable. 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. 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). From time to time there will be cases where this is an overriding consideration. Before dealing with the point of real substance, it is appropriate to briefly deal with two of the less meritorious contentions advanced. The decision of the British Columbia Court of Appeal in, 25 The law of mistake was discussed in depth by McLachlinCJBC in. Ltd. Yeo Tiong Min* I. 108 Chitty on Contracts (28th Ed, 1999) vol1 observes at para5-035: It is not clear whether for the mistake to be operative it must actually be known to the other party, or whether it is enough that it ought to have been apparent to any reasonable man. Samuel Teo had used all these notional numerals on the training template. The contract stands according to the natural meaning of the words used. Users may find that it may not be as forgiving as more traditional methods of communications. I reject this. The number of orders he placed was nothing short of brazen. 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. The contract was held to be void because there was no consensus on the terms. It was found that the plaintiffs must have known or realised that the offer did not express the true intention of the defendants. 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. Theoretically the supply of information is limitless. This assertion is patently untrue. Scorpio: 13/01/20 01:33 as many as I can! 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. This e-mail was sent only, 29 The first plaintiff struck me as an opportunistic entrepreneur. There is however much to be said in favour of rationalising the law of mistake under a single doctrine incorporating the best elements of common law and equity. 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. 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. 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. Where common mistake is pleaded, the presence of agreement is admitted. The purpose of the amendments was merely to regularise the pleadings and indeed they went no further than to summarise evidence and submissions that had already been raised. In addition, he despatched e-mails to the fourth and fifth plaintiffs attaching a hyperlink to the HP website. 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. There is no larger noble principle, such as the sanctity of contracts, to be observed or protected in these proceedings. The law of agency and that pertaining to the formation of contracts are expressly recognised in s13(8) of the ETA as continuing to apply to electronic transactions. They are described by their counsel in submissions as risk takers, business minded and profit seeking. 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. 36 The second plaintiff was the key person and pivotal in the entire chain of events. Soon after, the second, third and fifth plaintiffs took their claims to the media. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. Parties Chwee Kin Keong & Others v. Digilandmall.com Pte Ltd. Decision date 12/04/2004. They are not mechanical rules to be applied in a vacuum, devoid of a contextual setting. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. 35 In addition to these conversations, the second plaintiff also accessed the Epinions website and sent a related e-mail to the first plaintiff. They have taken into account both the English and Australian authorities in distilling the jurisprudence in this area. High Court Suit No 202 of 2003. Chwee Kin Keong decision - Chwee Kin Keong and Others v Digilandmall Pte Ltd [2004] 2 SLR 594; - Studocu Caso 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 jc tan sok IgnorarExperimenta 'Pergunta a um Especialista' Pergunta a um especialista With reference to the judgement, the case explores pricing mistakes by online stores. in the High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd,2 from the perspective of economics. 14 The first, second and fourth plaintiffs became acquainted with each other when they studied at the Nanyang Technological University (NTU). He is also a director and shareholder in a company engaging in wholesale trade, together with the second and third plaintiffs. 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). 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. Prejudice is to be viewed broadly to encompass any injustice and embraces both procedural and substantive notions; (d) recognising that while a costs award against the party seeking late amendments can frequently alleviate any inconvenience caused, this may not always be appropriate; (e) taking into account policy considerations that require finality in proceedings and proper time management of the courts resources and scheduling. The essence of unilateral mistake is the knowledge or deemed knowledge of a mistake and though fraud may often be present it is not an essential ingredient. 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. There was no satisfactory reason for the genesis of this e-mail (see [67] infra). Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71. No rights can pass to third parties. A number of them have very close relationships, with some of them even sharing common business interests. Although a mistaken party will not often be able to discharge the onus of showing that the other party knew or must have known that he or she intended terms different from the terms of the offer or acceptance, it is not a necessary element that the party seeking to enforce the contract has actively contributed to the others mistake. It would be fair to say that such a person should not have any legitimate expectation that the contract in question will be either respected or sanctioned by court. This is clearly a mistake as they could not possible be sold for an amount that in a commercial situation. When the defendants discovered this mistake on their website, they sent an email to the complainants to say they would not be fulfilling this order. Loose language may result in inadvertently establishing contractual liability to a much wider range of purchasers than resources permit. Having pointed out 6 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 . The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from Singapore. 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. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. 33 After his first order, the second plaintiff contacted the fourth and fifth plaintiffs informing them about the laser printers. Court name Singapore High Court. If this rule applies to international sales, is it sensible to have a different rule for domestic sales? The case of Hartog v Colin & Shields [1939] 3All ER 566 is incontrovertibly the leading authority in this area. The rules of offer and acceptance are satisfied and the parties are of one mind. Chwee Kin Keong v Digilandmall.com Pte Ltd,( [2005]SGCA 2 ) . High Court and Court of Appeal, recently, in a number of case . A viewer from any part of the world may want to enter into a contract to purchase a product as advertised. After the second plaintiff read out some of the terms and conditions he had found, the fifth plaintiff told him that the contract was binding upon a successful purchase order being received. No cash had been collected. He was also involved in initiating the Channel NewsAsia report (see [78] and [79], 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. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. It presents a textbook example of offer and acceptance. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. Chwee Kin Keong and others v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502; [2005] SGCA 2.