On the issue of his actual knowledge and communications with the other plaintiffs at the material time, I found his evidence unsatisfactory. Hence the first plaintiffs cryptically worded but highly significant mass e-mail where he adverted to the fact that he did not know if the defendant would honour the contracts but in any event wished all the recipients good luck. Inflexible and mechanical rules lead to injustice. It is, in large measure, determined by making an objective appraisal of the exchanges between the parties. Upon accessing the Digilandmall website and confirming that the printer was offered there at $66 as well, he placed a further order for 25 laser printers through that website at about 3.29am. 89 In the circumstances, I had little hesitation in allowing the amendments sought by the defendant. Case name. Contract Acceptance by Email - LawTeacher.net This can be before or during the trial, or after judgment or on appeal. 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. Yong Pung HowCJ in, [T]he function of the court is to try as far as practical experience allows, to ensure that the, Tan Sok Ling, Malcolm Tan and Mohan Das Vijayaratnam (Tan S L and Partners) for plaintiffs; If the offeree knows that the offeror does not intend the terms of the offer to be those that the natural meaning of the words would suggest, he cannot, by purporting to accept the offer, bind the offeror to a contract: Hartog v Colin & Shields [1939] 3All ER 566; Smith v Hughes (1871) LR6 QB 597. The first and fifth appellants each ordered a hundred printers, while the other appellants ordered more than a hundred printers each. Scorpio: 13/01/20 01:33 as many as I can! 10 News of the rather extraordinary laser printer pricing began to spread like wildfire within the local Internet community. The web merchant, unless he qualifies his offer appropriately, by making it subject to the availability of stock or some other condition precedent, could be seen as making an offer to sell an infinite supply of goods. The price for equitable justice is uncertainty. 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. 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. Civil Procedure Pleadings . 13 The first plaintiff, Chwee Kin Keong, is 29 years old. When considering the appropriate rule to apply, it stands to reason that as between sender and receiver, the party who selects the means of communication should bear the consequences of any unexpected events. In submissions, his counsel attempted to play down the significance of both this conversation as well as the mass e-mail. He too affirmed from his searches that the normal price of the laser printer was in the region of US$2,000. 30th Sep 2021 This can result from human interphasing, machine error or a combination of such factors. After receiving the e-mail from the first plaintiff, he visited the relevant HP website pages. Though he initially denied this in cross-examination, he had to accept this when confronted with his own e-mail as irrefutable evidence. The reach of and potential response(s) to such an advertisement are however radically different. 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. 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 Bell v Lever Bros Ltd [1932] AC 161 and Solle v Butcher. 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. Acceptance sent through email; is the postal rule applicable? The unconstrained exchange that followed between the two is both revealing and compelling. 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. The essence of snapping up lies in taking advantage of a known or perceived error in circumstances which ineluctably suggest knowledge of the error. He worked in an accounting firm, Ernst and Young, for three years. Quoine was operating as a market-maker on their own platform. 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. Article24 of the Convention states: For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention reaches the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence. [The Myth of Mistake in the English Law of Contract (1954) 70LQR 385 at 396]. This is much closer to the truth than the picture he has tried to paint in these proceedings. The mere fact that they suddenly engage in predatory and atypical behaviour may in itself be telling. Though the six plaintiffs accounted for only 18 of these purchase orders, they figure prominently among the 11 individuals who ordered more than 50 laser printers. 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. Offer and acceptances have to reach an intended recipient to be efective. [2005] 1 SLR(R) 0502 Chwee Kin Keong and others v Digilandmall.com Pte 148 The circumstances under which the orders were placed and the quantities sought to be purchased wholly undermine counsels variegated contentions that the plaintiffs lacked knowledge of or belief in the existence of a mistake. The shopping cart website page carried the insertion call to enquire under the heading Availability of product. Part of the training module included hands-on training with a new template for a Price Mass Upload function. 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. Case Summary 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. 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. Abstract The decision of V.K. 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. Scorpio: 13/01/20 01:24 huh?? They are described by their counsel in submissions as risk takers, business minded and profit seeking. e-Archive | SAcLJ | AP Journals Online 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 goods are not on offer but are said to be an invitation to treat. CHWEE KIN KEONG and Others v DIGILANDMALL.COM Pte Ltd (2004) 2 SLR 594. The affidavits did not add anything new. Gill & Duffus Landauer Ltd v London Export Corp GmbH [1982] 2 Lloyd's Rep. 627. [2005] SGCA 2 - eLitigation It is set in the context of internet contracting. 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. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. They were selling a HP laser printer and an employee accidently made a mistake as to the price of the printer on their website. It was found that the plaintiffs must have known or realised that the offer did not express the true intention of the defendants. To confine this exception to instances of fraud would make the concept of unilateral mistake redundant. The e-mail was given a high importance priority and captioned go load it now!!. It had consciously not inserted any limits to the number of products a buyer could purchase again, quite clearly, to solicit more business. 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. 40 When the fourth plaintiff responded to the first plaintiffs mass e-mail, he copied his response to the second plaintiff. Notwithstanding some real differences with posting, it could be argued cogently that the postal rule should apply to e-mail acceptances; in other words, that the acceptance is made the instant the offer is sent. He was aware that the laser printers were targeted for business use. 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 terms of the offer are clear and unambiguous and the offeree accepts the offer according to its true sense, Although a mistaken party will not often be able to discharge the onus of showing that the other party, 118 The Canadian courts have been the most active common law courts explicating and developing this area of the law. This rationalised the law and gives the court a broad discretion to fashion the applicable relief. This cannot be right. . The court found that parties when . 150 The plaintiffs have contended that this court ought to follow the decision in Taylor v Johnson and hold that the contract is not void under common law but voidable only in equity. 35 In addition to these conversations, the second plaintiff also accessed the Epinions website and sent a related e-mail to the first plaintiff. 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. In effect the Internet conveniently integrates into a single screen traditional advertising, catalogues, shop displays/windows and physical shopping. The businessmen saw a great opportunity and grabbed it placing an order for 1,000 printers. Where common mistake is pleaded, the presence of agreement is admitted. 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. 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. 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. Having noted all this, I am nevertheless inclined towards the views expressed in the, 131 In a number of cases, including the present, it may not really matter which view is preferred. It is therefore incumbent on the web merchant to protect himself, as he has both the means to do so and knowledge relating to the availability of any product that is being marketed. This is a disingenuous contention that desperately attempts to palliate their conduct in the subject transactions. 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. Prior to being self-employed, he was a corporate banker with Standard Chartered Bank, Singapore, for four years. The current general approach is correctly stated in Professor Jeffrey Pinslers Singapore Court Practice 2003 (LexisNexis, 2003) at para20/5/7: An amendment may be allowed even after both parties have made their closing submissions. 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. Having ascertained that the laser printer was being advertised at $66, he decided to undertake further online searches through Yahoo.com and Ebay.com. 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. It appears that in Convention transactions, the receipt rule applies unless there is a contrary intention. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. The E-Mail Acceptance Rule. 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. 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 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. 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). Chwee Kin Keong vs Digilandmall.com After establishing from the web pages that the price quoted for the laser printer was indeed $66, he proceeded to make searches through search engines like Yahoo and visited the website of Hardware.com. Homestead Assets Sdn Bhd v. Contramec . 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). FEATURE - Law Gazette Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. 80 Upon the conclusion of submissions, I directed counsel to appear before me. . 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. 45 The most telling aspect of the third plaintiffs evidence is his admission that he made Internet searches relating to the pricing of the laser printer, immediately after he was contacted by the first plaintiff. The second, third, fourth and sixth plaintiffs are the only individuals who ordered more than a hundred laser printers each. 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. [emphasis added]. In New Zealand, the legislature enacted the Contractual Mistake Act 1977. He commenced practice in 2000 and currently practices with the law firm representing the plaintiffs in this action. 116 The term snapping up was aptly coined by JamesLJ in Tamplin v James (1880) 15ChD 215 at 221. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. [2004 ] SGHC 71 - Court Judgement - Chwee Kin Keong and Others v "Unilateral Mistake at Common Law and in Equity" by Kelvin Fatt Kin LOW This new template was designed to facilitate instantaneous price changes allowing them to be simultaneously reflected in the relevant Internet web pages. 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. In doing so, they appear to have also conflated equitable and common law concepts. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. 67 MsToh subsequently did some research on how companies which had committed similar mistakes over the Internet handled the aftermath. The case went before both the High Court and the Court of Appeal. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. They are tainted and unenforceable. Chwee Kin Keong v Digilandmall Pte Ltd - LawTeacher.net The plaintiffs refute that the error exonerates the defendant; they insist that a concluded contract is sacrosanct and must be honoured. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. He appeared to be consummately familiar with Internet practices and was forced to concede that he thought it was weird and unusual when he saw the number 55 on the relevant webpages in place of the actual product description. He is also part of the Bel-Air network. Ltd.1 has the makings of a student's classic for several rea- Neither party raised any objections. Prior to this he was an associate in the Intellectual Property and Technology Department of Allen & Gledhill. 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 Bell v Lever in a naked attempt to achieve equitable justice in the face of the poverty of the common law. The defendants argued this pricing was a unilateral mistake and that the complainants took advantage of this. This was summarily resolved. 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. In Chwee Kin Keong v . CLARK, B. It appears to suggest that even if an offer is snapped up, the contract is not void. "Unilateral Mistake in Contract: Five Degrees of Fusion of Common Law a Different protocols may result in messages arriving in an incomprehensible form. No rights can pass to third parties. In the Singapore context a similar approach has been adopted by the Court of Appeal in, 105 It is not only reasonable but right that the objective appearance of a contract should not operate in favour of a party who is aware, in the eyes of the law, of the true state of affairs when, for instance, there is real misapprehension on the part of the mistaken party and when the actual reality of the situation is starkly obvious. There is one important exception to this principle. These considerations take precedence over the culpability associated with causing the mistake. 65 He was particularly circumspect in recounting his communications with the second plaintiff. 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. Computer glitches can cause transmission failures, garbled information or even change the nature of the information transmitted. He has incorporated an Internet business Dreamcupid in which the second plaintiff has an interest. In the recent case of Chwee Kin Keong and others v Digilandmall.com Pte Ltd (2005), the Singapore Courts were provided with an opportunity to revisit the law concerning mistakes made in the formation of a contract, in particular, in the context of online contracts. He claims visiting, inter alia, the Epinions and Hardwarezone websites, and though it appears that there was at the material time a discussion thread on the error on the Hardwarezone website, the fourth plaintiff denied having seen this. No harm trying right? He graduated with an accounting degree from NTU. 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. The Canadian and Australian cases have moved along with the eddies of unconscionability. Imagine the effect of this negative publicity on your future sales! COOKE v OXLEY (1790) 3 T. R. 653. There is no merit at all in this contention. Nor is it disputed that Samuel Teo, or any of the other employees of the defendant, was unaware at all material times of the dramatic chain of events so unwittingly initiated by the former. 3 All six plaintiffs are graduates, conversant with the usage of the Internet and its practices and endowed with more than an adequate understanding of business and commercial practices. 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. He somewhat muddied the authority of his observations by apparently accepting in Gallie v Lee [1969] 2 Ch 17 at 33 (affirmed on appeal in Saunders v Anglia Building Society [1971] AC 1004) that in Cundy v Lindsay there was no contract at all. [emphasis added]. 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. Contract doctrine is substantially predicated upon achieving an ethical equilibrium between the individualistic ethic and community ethic in order to protect reasonable or legitimate expectations. - See also Balfour v. Balfour (1919). 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. (PDF) Unilateral Mistake in Contract: Five Degrees of - ResearchGate Their reference to arbitraging was a nebulous fig leaf designed to legitimise their conduct in a cloak of legal and commercial respectability. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. NZULR, vol. 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. 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. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. 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.
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