His Internet research alone would have confirmed that. 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)). Ltd.1 has the makings of a student's classic for several reasons: it presents a textbook . The very foundations of predictability, certainty and efficacy, underpinning contractual dealings, will be undermined if the law and/or equity expands the scope of the mistake exception with alacrity or uncertainty. The decision of V.K. 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. 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. The CISG has currently been adopted by 95 Contracting States world-wide. They assumed that to be the position. 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. 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. In doing so, they appear to have also conflated equitable and common law concepts. Needless to say, he could not satisfactorily explain why his previous solicitors had formed such a view when preparing his affidavit and why he had affirmed the same. The ETA is essentially permissive. He is also part of the Bel-Air network. It is an important subject for the future development of English contract law. Despite the general views expressed in. 126 The Australian courts appear to have relied on the views of Lord DenningMR in Solle v Butcher to establish a wholly different doctrinal approach to mistake and have purportedly applied a fused concept of law and equity to the law on mistake. Though the actual price of the laser printer was $3,854, the defendant had on 8January 2003 mistakenly posted the price at $66.00 on its websites. It is essential that the law be perceived as embodying rationality and fairness while respecting the commercial imperative of certainty. They then argue that as equitable defences have not been pleaded, the court has no alternative but to allow the claim. A prospective purchaser is entitled to rely on the terms of the web advertisement. The most recent and authoritative pronouncement in this area (. The goods are not on offer but are said to be an invitation to treat. There are in this connection two schools of thought. A number of them have very close relationships, with some of them even sharing common business interests. The Canadian and Australian cases have moved along with the eddies of unconscionability. There was no satisfactory reason for the genesis of this e-mail (see [67] infra). He was opportunistic in effecting his purchases, active in co-ordinating with the other plaintiffs on the eventful morning, and economical with the truth in his evidence. Clout issue 43. To export a reference to this article please select a referencing stye below: This selection of essays, case summaries and dissertations is of relevance to law students within the Commonwealth and for those students who are studying the Rule of Law from outside the Commonwealth . 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. The number of orders he placed was nothing short of brazen. 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.. They contended that the entire ICQ conversation, infused with such a jocular tone, should be disregarded. In common mistake, both parties make the same mistake. Kin Keong v Digilandmall.com Pte Ltd [2004 . 33 See the Singapore Court of Appeal decision of Chwee Kin Keong v Digilandmall.com Pte Ltd[2005] 1 SLR 502 (noted by Yeo, TM ' Great Peace: a distant disturbance ' (2005) 121 Law Quarterly Review 393 Google Scholar; KFK Low 'Unilateral mistake at common law and in equity' [2005] Lloyd's Maritime and Commercial Law Quarterly 423; and PW . 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. 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. Soon after, the second, third and fifth plaintiffs took their claims to the media. Inflexible and mechanical rules lead to injustice. Yet in other aspects, he could recollect, with crystal clear precision and clarity, details of what had transpired. They are not mechanical rules to be applied in a vacuum, devoid of a contextual setting. HIGH COURT. In light of this, the parties did not address me on the issue of when the contract was formed, though this appears to be a relevant issue depending on which rule is adopted. Plaintiffs counsel indicated that they wanted to further particularise the sixth plaintiffs purchase orders. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. Desmond intimated that the defendant would give vouchers or special deals as a matter of equitable compensation should it not honour the purchase orders. 2 Who is correct? The essential point remains: will prejudice be caused and/or are any policy considerations called into play. The case of Hartog v Colin & Shields [1939] 3All ER 566 is incontrovertibly the leading authority in this area. This judgment text has undergone conversion so that it is mobile and web-friendly. The price for equitable justice is uncertainty. The Canadian and Australian cases have moved along with the eddies of unconscionability. Articles 11 (1) Country Singapore. Evidence was given that if phone calls were indeed placed, they would from time to time limit the number of sales. 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. In the final analysis, it would appear that the likely existence of an internal error in pricing was clearly within his contemplation. Before dealing with the point of real substance, it is appropriate to briefly deal with two of the less meritorious contentions advanced. Introduction The decision of V.K. 68 Yeow Kinn Oei is 29 years old and the brother of the third plaintiff. The payment mode opted for was cash on delivery. 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. 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. 133 It is however clear that the law should not take cognisance of bad bargains and misapprehension that do not affect a fundamental or essential aspect of a contractual relationship. Court name Singapore High Court. 10 News of the rather extraordinary laser printer pricing began to spread like wildfire within the local Internet community. 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. , In unilateral mistake, only one of the parties is mistaken. 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. [2005] 1 SLR (R) Chwee Kin Keong v Digilandmall.com Pte Ltd 507 printers. 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. 112 Phang ([106] supra, at 418) rightly observes: It must be stressed that, in this context, a man is taken to have known what would have been obvious to a reasonable person in the light of the surrounding circumstances. 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. 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. He was amicus curiae to the Court of Appeal of Singapore in the case of Chwee Kin Keong & Ors v Digilandmall.com Pte Ltd, the leading Singapore case on unilateral mistake in the digital environment. hahaha means S$132, Desmond 13/01/20 01:43 even $500 is a steal. This is in contrast to the English position where after several decades Hartog v Colin & Shields still remains the locus classicus. He had left everything to his brother. 6 On Wednesday, 8January 2003 between 3.00pm and 4.00pm, DILs employees conducted a training session at the defendants premises. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. 63 It is pertinent he too made web searches using the Google search engine. 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. I agree that this exception should be kept within a very narrow compass. MrYeow said: After we ordered, the very next day, some of us have even gone up to talk to buyers in the market about the units. He worked in an accounting firm, Ernst and Young, for three years. The programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. [emphasis added]. At 4.15am, he sent an email to the first plaintiff, copied to the second plaintiff, with a happy emoticon following check out the prices here (see [19] supra). Where common mistake is pleaded, the presence of agreement is admitted. 141 In so far as the sixth plaintiff is concerned, I emphasise that his knowledge and/or conduct of should be equated with that of the third plaintiff. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. The marrow of contractual relationships should be the parties intention to create a legal relationship. His communications with the fifth plaintiff, a lawyer, on the efficacy of the terms and conditions also lead to the ineluctable conclusion that he harboured anxieties whether this astoundingly good deal would be honoured when the error was discovered. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. 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. 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. He conducted the searches to ascertain what the laser printers true price was. The case of, The offer was wrongly expressed, and the defendants by their evidence, and by the correspondence, have satisfied me that the plaintiff, 116 The term snapping up was aptly coined by JamesLJ in, 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. Desmond: 13/01/20 01:47 wasnt greedy before I tok to u. Scorpio: 13/01/20 01:47 yeah.. S$1 mio then no need to work liao?? Being fully conscious of the pivotal nature of this point, I have duly accorded particular attention to the evidence and credibility of each of the plaintiffs. The decision of the British Columbia Court of Appeal in, 25 The law of mistake was discussed in depth by McLachlinCJBC in. 98 Once an offer is sent over the Internet, the sender loses control over the route and delivery time of the message. I have found that the plaintiffs had at all material times knowledge of or, at the very least, a real belief that an error had been made by the defendant in the price posting. 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. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. This e-mail was sent only after the first plaintiff had made his own Internet searches on the pricing of the laser printer. That said, it also offers new avenues of evidential proof offering intimate insights into realtime thought processes and reactions. He is currently a supervisor in the taxation department of an international accounting firm, Deloitte & Touche, specialising in corporate taxation services. Quite apart from this singularly precise timing, his exchange with Ms Toh is noteworthy for the following reason: when he told her about the various concluded purchases of the laser printers, she immediately thought it was a mistake and that HP would not honour the contracts. Notwithstanding occasional failure, most e-mails arrive sooner rather than later. 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. This is an area that needs to be rationalised in a coherent and structured manner. Any information contained in this case summary does not constitute legal advice and should be treated as educational content only. There is constant tension in our legal system to accommodate the Janus-like considerations of fairness and finality. 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. Why? 91 There is no real conundrum as to whether contractual principles apply to Internet contracts. If he was prepared to commit this view in writing to a larger circle of 54 friends and business associates, 47 Not content with making his own purchases, he woke up his brother and transacted 330 units on his behalf. 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. 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 granted leave to both parties to file applications to amend the pleadings. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. 58 The fifth plaintiff was first informed by the second plaintiff at about 2.30am about cheap laser printers being available for purchase. There is no larger noble principle, such as the sanctity of contracts, to be observed or protected in these proceedings. 51 The fourth plaintiff received a phone call from the second plaintiff at about 2.00am, informing him that there was money to be made through the purchase of laser printers. Chwee Kin Keong v Digilandmall.com Pte Ltd,( [2005]SGCA 2 ) . 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. The following excerpts are particularly relevant: Desmond: 13/01/20 01:17 go hp online now. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. COOKE v OXLEY (1790) 3 T. R. 653. If an offeree understands an offer in accordance with its natural meaning and accepts it, the offeror cannot be heard to say that he intended the words of his offer to have a different meaning. The text of the e-mail further reinforces the point. This is much closer to the truth than the picture he has tried to paint in these proceedings. This is an online dating and match-making service. This may have created formatting or alignment issues. As with any normal contract, Internet merchants have to be cautious how they present an advertisement, since this determines whether the advertisement will be construed as an invitation to treat or a unilateral contract. I do not know if this is an error or whether HP will honour this purchase. 73 The sixth plaintiffs orders did not receive matching confirmations from the defendant as his e-mail box was full. 80 Upon the conclusion of submissions, I directed counsel to appear before me. 32 Satisfied with his enquiries in relation to the printer model, he returned to the HP website and placed an order for 100 laser printers at about 2.23am. In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. In this case, there was no consensus ad idem or meeting of the minds between the parties, which meant that there could be no binding contract between them. The argument is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void. Phang, Controversy in Common Mistake [2003] Conv 247; Reynolds, Reconsider the Contract Textbooks (2003) 119LQR 177. This view seems to suggest that principles of equity invariably provide an equally strong but more elastic second string to the bow. 97 Different rules may apply to e-mail transactions and worldwide web transactions. 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). He also called the first plaintiff to see if the latter had managed to successfully complete his purchase. Desmond: 13/01/20 01:41 u want it for profit or personal use? They have taken into account both the English and Australian authorities in distilling the jurisprudence in this area. They want Digiland to honour the deal or at least to compensate them. Some of the plaintiffs appeared rather coy or ignorant in this regard but I did not find their performance believable. I was neither impressed nor convinced. The elements of an offer and acceptance are ex facie satisfied in every transaction asserted in the plaintiffs claims. 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]): If the common law continues to take precedence, then an essential mistake would void a contract ab initio. 135 The defendant however asserts that there were no concluded contracts with any of the plaintiffs on a number of grounds. Where either mutual or unilateral mistake is pleaded, the very existence of agreement is denied. 33 After his first order, the second plaintiff contacted the fourth and fifth plaintiffs informing them about the laser printers. 100 There is however another statute that ought to be taken into consideration in determining the appropriate default rule in e-commerce transactions. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. Chwee Kin Keong v Digilandmall Pte Ltd The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from Singapore. The law of mistake has generated its own genre of mistakes and obfuscation. 4 The defendant is a company that sells information technology (IT) related products over the Internet to consumers. Errors may incur wholly unexpected, and sometimes untoward, consequences as these proceedings so amply demonstrate. Cory had chosen this mode of communication; therefore he Normally, however, the task involves no more than an objective analysis of the words used by the parties. One is hard put to imagine that anyone would purchase such an item, let alone place very substantial orders, without making some very basic enquiries as to pricing. Desmond: 13/01/20 01:44 if they dont honor it Scorpio: 13/01/20 01:45 sell me one lah name your price ;-) sue them lor , Desmond: 13/01/20 01:45 I think they will give vouchers or special deals. 102 Inevitably mistakes will occur in the course of electronic transmissions. 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. The plaintiffs are, however, entitled to the cost of the amendments, in any event, which I fix at $1,000. Court Judgement chwee kin keong and others digilandmall.com pte ltd slr sghc 71 suit no: suit decision 12 apr 2004 date: court: coram: counsel: high court rajah Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew My Library Discovery Institutions London School of Business and Finance SAA Global Education The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. . 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. 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 In my view this further undermines the essence of the plaintiffs case that they never contemplated that the pricing was a mistake. Scorpio: 13/01/20 01:33 as many as I can! 3. Market orders: order to be executed immediately at the best available price. A court is not likely to take a sympathetic view of such manner of amendment. If there appears to be no reasonable explanation for an absurd price discrepancy, it is axiomatic that any hasty conduct, such as the plaintiffs, in snapping up products, should be punctiliously scrutinised and dissected. It is axiomatic that normal contractual principles apply but the contractual permutations will obviously be sometimes more complex and spread over a greater magnitude of transactions. 122 For now it appears that a mistaken party can have two bites at the cherry. 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 initial order for 30 laser printers was placed at round 3.45am while the second order for 300 units was placed at around 3.53am. Pginas: 93: High Court - Suit n 202 of 2003. reference was made by the court to "fraud or a very high degree of misconduct" before the non- mistaken party could be . A particular class of case which illustrates unilateral mistake as to the terms intended, known to the other party, is that in which an offer which would be very advantageous to the offeree is snapped up by the offeree. 42 Mark Yeow Kinn Keong has a Bachelor of Science (Economics) degree from the University of London. 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 The relevant text reads: WHILE surfing the Net at about 2am on Monday, MrTan Wei Teck stumbled upon an offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. Therefore, administrative law encompasses Is the Right to Privacy Adequately Protected? It does not purport to regulate e-commerce but attempts to facilitate the usage of e-commerce by equating the position of electronic records with that of written records, thus elevating the status of electronic signatures to that of legal signatures. 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. 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. The defendant programmed the software. He offered to buy a laser printer from Desmond at double the price, that is $132. 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. 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 appears to have been in constant communication with the second plaintiff and to have received and read the mass e-mail from the first plaintiff after he placed his first purchase order. 54 The fourth plaintiff admits that he had entertained the idea at the material time that the price posting could have been an error. This is a matter perhaps best left to law reform rather than to incremental judge-made law which may sow the seeds of confusion and harvest the returns of uncertainty. 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.
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