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. (2d) Chwee Kin Keong v Digilandmall [2004 ] SGHC 71 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. Chwee Kin Keong v. Digilandmall.com Pte. The issue could be critical where third party rights are in issue as in. 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. When giving evidence, he struck me as cautious, taking great pains to convey the impression that his numerous online enquiries that morning were routinely carried out without any real inkling that an error had occurred. His evidence pertaining to the material points of knowledge and his communications with the other plaintiffs lacked credibility. A steady stream of decisions from common law courts indicate a measured but nevertheless distinctly incremental willingness to extend the scope of the exception to not just actual knowledge, but deemed or constructive knowledge as well. 98 Once an offer is sent over the Internet, the sender loses control over the route and delivery time of the message. - Rebutting presumption: "The question [whether or not there is a binding contract] must depend on the In addition, Tan Cheng Peng, the girlfriend and business associate of the third plaintiff, filed an affidavit detailing her communications with him. 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. 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. 137 Furthermore, from the evidence adduced, it became clear that the defendant had intentionally put the words call to enquire instead of, say, the phrase subject to stock availability in an attempt to entice would-be purchasers to place orders with them. 44 He made his first purchase of ten laser printers at about 2.42am. I note that Chitty at para5-089, fn25 sagely opines that Taylor v Johnson does not represent English law, at least, where the other party knows that a mistake has been made. 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. Online Pricing Mistakes | Emerald Insight v . 26 I respectfully agree with the reasoning of ShawJ in Can-Dive Services Ltd v Pacific Coast Energy Corp (1995), 21CLR(2d) 39 (BCSC), where he said at 69-70 that: 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. Court reference 202 of 2003. 26 It is clear from the priority status accorded to the e-mail that the first plaintiff was sharing his knowledge of a good deal. 134 It is not really in issue that contracts can be effectively concluded over the Internet and that programmed computers sending out automated responses can bind the sender. In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. chwee kin keong v digilandmall high court. It can be persuasively argued that e-mails involving transactions embraced by the Convention are only effective on reaching the recipient. For example, in the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594 ("Digilandmall"), affirmed on appeal in Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502 without considering this particular issue, V K Rajah JC (as he then was) observed, as follows (at [139]): 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. Having expressed my views on consideration, I should also add for good measure that, in any event, there is ample consideration. 46 He was therefore aware, even before he made his first purchase, that the actual price of the laser printer was in the region of US$2,000. Similar works. Once again, however, this does not deprive E of his legal remedies; nor does it avail V if he wishes to recover property which he may have transferred under the contract. I accept that this is capable of including circumstances in which a person refrains from or simply fails to make enquiries for which the situation reasonably calls and which would have led to discovery of the mistake. 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. 7 At about 3.36pm, Samuel Teo, an employee of DIL, inadvertently uploaded the contents of the training template onto the Digiland commerce website operated by DIL, in place of the test website allocated for the training. 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. This is in contrast to the English position where after several decades Hartog v Colin & Shields still remains the locus classicus. It appears to suggest that even if an offer is snapped up, the contract is not void. PDF Emily M. Weitzenboeck, 2012 Norwegian Research Center for - UiO This cannot be right. 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. The decision of V.K. 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. Not all one-sided transactions or bargains are improper. Is this a case of poetic justice? It was held that the contract between the parties was void. 327. , In unilateral mistake, only one of the parties is mistaken. The first plaintiffs purchase took place soon after the ICQ conversation with Desmond where Desmond had in no uncertain terms pitched the price of the laser printer between $3,000 to $4,000. The element of constructive knowledge based upon what a reasonable person ought to know is premised upon that person not being conscious of the error. in the High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd,2 from the perspective of economics. The later the amendment, the greater the adverse consequences. 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. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . How come got such thing? 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. The first plaintiffs callname in this exchange is Scorpio. There is one important exception to this principle. 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 (cf Ketteman v Hansel Properties). Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. Furthermore, unlike a fax or a telephone call, it is not instantaneous. If the common law continues to take precedence, then an essential mistake would void a contract ab initio. 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. The third plaintiff informed him that laser printers were being sold at $66 each and that these laser printers could be sold at a much higher price about a thousand plus. Altogether, the second plaintiff purchased 180 units, opting for cash on delivery as the payment mode. 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. Errors may incur wholly unexpected, and sometimes untoward, consequences as these proceedings so amply demonstrate. 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.. Court Determines if There's a Contract Existence - LawTeacher.net It is unequivocally unethical conduct tantamount to sharp practice. He is 32 years old and conducts his own network marketing business. This e-mail was sent only, 29 The first plaintiff struck me as an opportunistic entrepreneur. Nor could he satisfactorily explain why he initially made the Internet searches to ensure the offer was genuine. 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. 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. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. This final mass e-mail only reinforces my view that the first plaintiff consistently and continuously entertained the view that the price posting on the HP website was a mistake. The case of Hartog v Colin & Shields [1939] 3All ER 566 is incontrovertibly the leading authority in this area. The first and fifth appellants each ordered a hundred printers, while the other appellants ordered more than a hundred printers each. This was also the practice in the trade. The E-Mail Acceptance Rule. The court found that parties when . 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. He placed his first order for 50 units at about 2.58am, and his second order for another 50 units at 3.22am, again through the HP website. The Canadian and Australian cases have moved along with the eddies of unconscionability. I note that there have been powerful arguments made to the contrary. Notwithstanding occasional failure, most e-mails arrive sooner rather than later. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. 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. Digilandmall - 502 SINGAPORE LAW REPORTS (REISSUE) [2005] 1 SLR(R It would be illogical to have different approaches for different product sales over the Internet. This e-mail was sent only after the first plaintiff had made his own Internet searches on the pricing of the laser printer. 39 The sequence of orders placed by the second plaintiff in the short space of an hour and a half deserves some mention. 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. Users may find that it may not be as forgiving as more traditional methods of communications. 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. reference was made by the court to "fraud or a very high degree of misconduct" before the non- mistaken party could be . This contention is wholly untenable. 134 It is not really in issue that contracts can be effectively concluded over the Internet and that programmed computers sending out automated responses can bind the sender. It will firstly discuss the fact that such a tort Our academic writing and marking services can help you! No harm trying right? 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. They assumed that to be the position. A prospective purchaser is entitled to rely on the terms of the web advertisement. He said that he wanted to be sure that the offer on the HP website was genuine. 14 The first, second and fourth plaintiffs became acquainted with each other when they studied at the Nanyang Technological University (NTU). The other knows, or must be taken to know, of his mistake. 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. China-Singapore "One Belt One Road" International Business Cases Digest Part 1 -"" () 457-463 (2020, published by the Singapore and People's Republic of China Supreme Courts . 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. six plaintiffs ordered 1,606 printers. 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. Case law chwee kin keong v digilandmallcom pte ltd. School Nanyang Technological University; Course Title ACC 1301; Uploaded By saint_huimin. They were selling a HP laser printer and an employee accidently made a mistake as to the price of the printer on their website. Where common mistake is pleaded, the presence of agreement is admitted. The defendants argued this pricing was a unilateral mistake and that the complainants took advantage of this. Certain Internet service providers provide the technology to inform a sender that a message has not been properly routed. The first issue dealt with references made by the plaintiffs to certain embargoed material. The CISG has currently been adopted by 95 Contracting States world-wide. The knowledge that the offer is not meant according to its literal terms simply displaces the objective theory of contract. The answer on the authorities is a mistake by one party of which the other, 111 This approach appears to have been endorsed by Judith PrakashJ in, 114 For good measure, I should allude that the plaintiffs in their written submissions concede that in order to establish that mistake is operative at common law, the defendant has to show in this instant case that the plaintiffs each had, 115 There is a distinct line of cases within the narrow confines of unilateral mistake where the common law has been resolutely disinclined to enforce apparent contracts. He is also part of the Bel-Air network. 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. It is essential that the law be perceived as embodying rationality and fairness while respecting the commercial imperative of certainty. Clout issue 43. He placed another order for a further 150 printers at 3.14am, followed by two further orders for 300 printers each at about 3.56am and 3.59am. 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. There could be different considerations. 122 For now it appears that a mistaken party can have two bites at the cherry. 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 court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. This price was much lower than the actual retail price, and had been posted on the defendant's website by mistake. Chwee Kin Keong and others v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502; [2005] SGCA 2. As for the common law on unilateral mistake, it is claimed that the acid test for its application is not satisfied. 140 The defendant has however properly asserted that there was a unilateral mistake that vitiated all the contracts. Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 stated: [T]o allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. Please refer to the PDF copy for a print-friendly version. PDF Woo Kah Wai and another v Chew Ai Hua Sandra and another appeal It is an important subject for the future development of English contract law. The CISG has currently been adopted by 95 Contracting States world-wide. 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. The argument is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void. Consideration was less than executory and non-existent. 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. In New Zealand, the legislature enacted the Contractual Mistake Act 1977. Needless to say, this goes to the very heart of the claims sustainability. CLARK, B. In these proceedings, it appears that the purchases made by the sixth plaintiff were not accompanied by a corresponding receipt of acceptances, as his e-mail inbox was full. 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. It is asserted that since mistake had not been pleaded as an equitable defence, equity cannot be invoked by the defendant. VKR a j a hJ C. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004. He had left everything to his brother. Inflexible and mechanical rules lead to injustice. Having said that, this exception must always be prudently invoked and judiciously applied; the exiguous scope of this exception is necessary to give the commercial community confidence that commercial transactions will almost invariably be honoured when all the objective contractual indicia are satisfied. So there is a contract and therefore the defendant is liable in breach of contract. It had consciously not inserted any limits to the number of products a buyer could purchase again, quite clearly, to solicit more business. Others do not. Adopting an objective standard, executory contracts have in fact been entered into and concluded between the parties. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. [2005] SGCA 2 - eLitigation 153 These statements of jurisprudence are of cardinal importance in understanding and fashioning the law of contract. The decision of the British Columbia Court of Appeal in 25659 BC Ltd v 456795 BC Ltd (1999) 171DLR(4th) 470 at [25] to [26], is instructive: 25 The law of mistake was discussed in depth by McLachlinCJBC in First City Capital Ltd v BC Building Corp (1989), 43BLR 29 (SC). The case went before both the High Court and the Court of Appeal. This is without basis. Indeed he had conduct of significant phases of these proceedings on behalf of the plaintiffs. 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. I must add that I did not really think this was necessary and subsequent events confirmed my perception. 101 RSS Intellectual Property Office of Singapore Expand/Collapse. Their conduct in pursuing their claims cannot by any stretch of the imagination be characterised as having the slightest colour of being legitimate regardless of whether the subjective or objective theories are applied and whether common law or equity is applied in adjudicating this matter. In doing so, they appear to have also conflated equitable and common law concepts. However, not all principles will or can apply in the same manner that they apply to traditional paper-based and oral contracts. 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. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. The financial consequences could be considerable. This could account for the substantial number of Canadian cases in this area of the law. In these circumstances we can see no option but so to hold. In turn, the ICQ chat session involving the first plaintiff and the respective plaintiffs exchange of e-mails played a significant role in undermining their credibility and claims. 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. 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 Given his professional and business background, he must have realised that the $66 price posting on the HP website was an error. 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. u think this is the 1970s?? 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. Theoretically the supply of information is limitless. Certainty in commercial transactions should not be trifled with, as this will inevitably affect how commercial and business exchanges are respected and effected. Indeed this appears to be the underlying rationale for the unique legal characteristics attributed to an invitation to treat; see Grainger & Son v Gough [1896] AC 325 at 333334, Esso Petroleum Ltd v Commissioners of Customs & Excise [1976] 1All ER 117 at 126. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. 18 He said he later conducted some searches using the Google search engine and ascertained that the laser printer could be sold at about US$1,300 in certain markets. This is an inane argument. The second issue was raised by me and touched upon contentions made by both parties in their written submissions. I am not prepared, after full consideration, to assume that the reporters misquoted the facts. 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. 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. On the issue of his actual knowledge and communications with the other plaintiffs at the material time, I found his evidence unsatisfactory. Yet in other aspects, he could recollect, with crystal clear precision and clarity, details of what had transpired. The question is what is capable of displacing that apparent agreement. . 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. The most recent and authoritative pronouncement in this area (. But it is difficult to see how that can apply here. 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. 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 coz they might change it anytime, are all compelling in reflecting his state of mind and awareness that an error had occurred. This has clearly caused much confusion in the common law jurisdictions. Normally, however, the task involves no more than an objective analysis of the words used by the parties. 60 Prior to placing his order, he was again contacted by the second plaintiff. While they did not invariably admit that their searches were made prior to each of the respective transactions, it was plain that they did not tell the whole truth about what they knew, how they knew it and when they knew it.