The argument is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void. 94 Historically, the common law has recognised an anomaly in the contractual features pertaining to a display of goods for sale. His credibility on the material points was dubious, at best. The payment mode opted for was cash on delivery. 122 For now it appears that a mistaken party can have two bites at the cherry. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004] SGHC 71. Claiming he was in a light-hearted kind of mood during his ICQ (acronym for I-Seek-You) conversation with Desmond, he insisted that this conversation should be taken neither seriously nor literally. He subsequently sent the web link to the Epinions website to the first and second plaintiffs. 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. 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. The sixth plaintiff is precluded from asserting his ignorance. Why? It is set in the context of internet contracting. The text of the e-mail further reinforces the point. Case Update: B2C2 Ltd v Quoine Pte Ltd [2019] SGHC(I) 3; Quoine v B2C2 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. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. Singapore Court of Appeal. In fact, he and the fourth plaintiff have jointly conceptualised and implemented an Internet-related business. 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. They have a common interest in bridge and this helped to cement their friendship. CLARK, B. Yet in other aspects, he could recollect, with crystal clear precision and clarity, details of what had transpired. 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 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. 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. 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. 72 To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. In addition, he despatched e-mails to the fourth and fifth plaintiffs attaching a hyperlink to the HP website. 135 The defendant however asserts that there were no concluded contracts with any of the plaintiffs on a number of grounds. Basic principles of contract law continue to prevail in contracts made on the Internet. 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 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. 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. The case of Chwee Kin Keong & Ors v Digilandmall.com Pte Ltd [2004] SGHC 71, and the decision by VK Rajah JC, has received much public attention. In his initial affidavit he admitted wondering whether the price was a mistake after his first order was placed. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). Scorpio: 13/01/20 01:33 as many as I can! Rather, in my opinion, constructive knowledge alone will suffice to invoke equitys conscience. 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. In short, where does the justice reside? 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. Scorpio: 13/01/20 01:24 huh?? Application of such a rule may however result in contracts being formed outside the jurisdiction if not properly drafted. In addition to the law of (especially, unilateral) mistake, issues relating to the formation of a contract will be considered (including the law relating to offer and . 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. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . The defendants wanted to sell some hare skins to the plaintiffs. This can result from human interphasing, machine error or a combination of such factors. Following closely to the Singapore High Court in Chwee Kin Keong & Others v Digilandmall.com Pte Ltd [2004] 2 SLR 594 as a precedent with similar context, the court would most likely try to determine if there is an existence of a contract or if an agreement has been reached in the first place, so we refer to Lord Phillips in Shogun Finance Ltd v Phang, Controversy in Common Mistake [2003] Conv 247; Reynolds, Reconsider the Contract Textbooks (2003) 119LQR 177. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. 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. Has an agreement been reached or not? [2005] 1 SLR(R) 0502 Chwee Kin Keong and others v Digilandmall.com Pte 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)). Contract Acceptance by Email - LawTeacher.net The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. He is currently a supervisor in the taxation department of an international accounting firm, Deloitte & Touche, specialising in corporate taxation services. These statements are not to be interpreted as a clarion call to rewrite commercial agreements because of a partys unreasonable or ignoble behaviour. It was found that the plaintiffs must have known or realised that the offer did not express the true intention of the defendants. The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. The payment mode selected by the third plaintiff was cash on delivery. They are tainted and unenforceable. Nor could he satisfactorily explain why he initially made the Internet searches to ensure the offer was genuine. There is often, but not inexorably, a co-relationship between the timing when the amendment is sought and the adverse consequences for the other party. This may be too high a price to pay in this area of the law. 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. 24 While the first plaintiff conceded that he had communicated to the second and third plaintiffs the existence of a good deal, he maintained he did not discuss the possibility of the pricing being a mistake. Any information contained in this case summary does not constitute legal advice and should be treated as educational content only. 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. Singapore Comparative Law Review 2019 (SCLR 2019) - Issuu His revelation that he did not know if this is an error or whether HP will honour this purchase, not to mention the articulation of his hope that by the time you see this email, the price is still at S$66.00, 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. The elements of an offer and acceptance are ex facie satisfied in every transaction asserted in the plaintiffs claims. 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. Indeed, I am satisfied to the contrary. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004 - vLex 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. He has incorporated an Internet business Dreamcupid in which the second plaintiff has an interest. 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. 48 The third plaintiff annexed to his affidavit the transcript of the Channel NewsAsia report where he was quoted. 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. 38 The second plaintiff came across as intelligent and resourceful. PDF Unilateral Mistake in Contract: Five Degrees of Fusion of Common Lawand Introduction The decision of V.K. Furthermore, they relied on a passage from, At the trial leave to amend particulars will as a rule be refused (, 84 It is axiomatic that a court will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the proceedings has been completed. Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] - YouTube 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. 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. 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. In a Straits Times report dated 15January 2003 captioned $66 printer error angry customers seek lawyers help, it was reported that the second plaintiff, described as a network marketer had on 13January at about 2.00am stumbled upon a offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. A-Z of Cases | Carlil & Carbolic - Law Study Resources 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. 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. It is not in dispute that the defendant made a genuine error. E-mails are processed through servers, routers and Internet service providers. 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. 146 A purchaser in a case of apparent unilateral mistake, who purchases for genuine own use a product, may not always be viewed as guilty of engaging in snapping up. 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. Articles 11 (1) Country Singapore. In doing so, they appear to have also conflated equitable and common law concepts. 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 case involved the sale of printers by the defendant at a price of S$66. In evidence he explained his conduct in the following manner: I felt that I had done all that was conceivably within my means to ensure that the Price was not a mistake. Certainty in commercial transactions should not be trifled with, as this will inevitably affect how commercial and business exchanges are respected and effected. He opted to pay for all his purchases by cash on delivery. In these circumstances we can see no option but so to hold. 47 Not content with making his own purchases, he woke up his brother and transacted 330 units on his behalf. 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 58 The fifth plaintiff was first informed by the second plaintiff at about 2.30am about cheap laser printers being available for purchase. To confine this exception to instances of fraud would make the concept of unilateral mistake redundant. Part of the training module included hands-on training with a new template for a Price Mass Upload function. At 4.16am he placed another order for one laser printer, by credit card, on the HP website. In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. Merchants may find their contracts formed in foreign jurisdictions and therefore subject to foreign laws. In Chwee Kin Keong v. Digilandmall.com Pte Ltd, one of the defendant's employees mistakenly uploaded the contents of a training template onto the defendant's website, resulting in the retail price of S$3,854 for a commercial laser printer on the website being replaced with the figure S$66. 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. Desmond: 13/01/20 01:25 I think one of the wrong posted price, Scorpio: 13/01/20 01:25 damn dont tell me they realised their error already, Scorpio: 13/01/20 01:32 shiok can make a quick profit by selling them cheap shd buy more. It appears to suggest that even if an offer is snapped up, the contract is not void. 89 In the circumstances, I had little hesitation in allowing the amendments sought by the defendant. Rules of court which are meant to facilitate the conduct of proceedings invariably encapsulate concepts of procedural fairplay. COURT. 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. 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. 155 The Internet has revolutionised commerce and radically altered the manner in which commercial interaction currently takes place. The programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. 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 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. 4, 1971, p. 331. 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. Given its global reach and ever changing technological advancements, Internet usage will pose a myriad of issues for resolution. Chwee Kin Keong Vs | PDF - Scribd The product descriptions in all the other pages of the respective websites, at the material time, carried a full detailed description of all advertised products. 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. I agree that this exception should be kept within a very narrow compass. I must add that these were far from being ordinary printers for home use. 64 The fifth plaintiff was vague and tentative in many crucial aspects of his evidence. - Rebutting presumption: "The question [whether or not there is a binding contract] must depend on the PDF Blips And Blunders: The Law Concerning Mistakes Made In Electronic C {Q V In the fifth plaintiffs affidavit evidence, he asserted emphatically and unequivocally that at no point did I ever think that the price of the printers were a mistake. 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. He said that he wanted to be sure that the offer on the HP website was genuine. The essence is not so much in the nature of the amendment but rather in the consequences flowing from any amendment to the pleadings. Looking for a flexible role? This, in a nutshell, is the issue at the heart of these proceedings. 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. [emphasis added]. 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. hahaha means S$132, Desmond 13/01/20 01:43 even $500 is a steal. Free resources to assist you with your legal studies! Added to his own purchases of 760 units, he was effectively responsible for the purchase of 1,090 laser printers. The caption in each of the e-mails Successful Purchase Confirmation from HP online says it all. While I agree with what Madam Justice Mclachlin said so far as it goes, I do not believe she intended to imply that there must be a conscious taking advantage by one party of the other in all cases. 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. 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. [2005] 1 SLR(R) Chwee Kin Keong v Digilandmall Pte Ltd 521. whether constructive knowledge by a non-mistaken party of the mistake would suffice to vitiate the contract ab initio. 123 One view maintains that the mistaken party can either attempt to have the contract declared void at common law if the mistake is fundamental or radical, or alternatively seek a remedy in equity, which could include rescission. 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. In Chwee Kin Keong v. Digilandmall.com Pte Ltd , 1 one of the defendant's employees mistakenly uploaded the contents of a training template onto the defendant's website, resulting in the retail price of S$3,854 for a commercial laser printer on the website being replaced with the figure S$66. This judgment text has undergone conversion so that it is mobile and web-friendly. Placing an advertisement on the Internet is essentially advertising or holding out to the world at large. The knowledge that the offer is not meant according to its literal terms simply displaces the objective theory of contract. 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. Often the essence of good business is the use of superior knowledge. 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. As for the common law on unilateral mistake, it is claimed that the acid test for its application is not satisfied. 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. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. So its going to be our reputation at stake, we thought we had a successful transaction.. The contract stands according to the natural meaning of the words used. They stoutly assert that they were too preoccupied with the realisation of potential profits through a so-called arbitrage position between different markets to contemplate that an error had been made. However, at the actual hearing of the applications, plaintiffs counsel opposed any amendments whatsoever to the defence and sought leave to withdraw the plaintiffs earlier unilateral amendments. VKR a j a hJ C. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004. In the absence of proper and full arguments on the issue of which rule is to be preferred, I do not think it is appropriate for me to give any definitive views in these proceedings on this very important issue. Notwithstanding, the defendant does not take issue with this as the sixth plaintiffs orders were received and the appropriate automated responses generated. He worked for a short period in the IT Project Development department of the Standard Chartered Bank, where he became acquainted with the first plaintiff. The modern approach in contract law requires very little to find the existence of consideration. ThompsonJ of the Ontario High Court applied Hartog v Colin & Shields ([115] supra) and held that the parties were not ad idem and found that no contract had been formed. The terms of the offer are clear and unambiguous and the offeree accepts the offer according to its true sense, but it must have been obvious (and known by the offeree) that the offeror did not intend to make an offer in those terms. 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. They then argue that as equitable defences have not been pleaded, the court has no alternative but to allow the claim. They contended that the entire ICQ conversation, infused with such a jocular tone, should be disregarded. Such conduct is akin to that of an unscrupulous commercial predator seeking to take advantage of an error by an unsuspecting prey by pouncing upon it before the latter has an opportunity to react or raise a shield of defence. It is plain that the defendant had given careful consideration to this issue and was prepared to contract on the basis that it would be able to comply with any orders hence, there was no reference to any order being subject to stock availability.