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. Counsel however contends that even if this e-mail were to be read literally, this should not affect the first plaintiffs own purchase that had taken place an hour earlier. (See for example the approach in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 1AllER 512.) 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. 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. The present article analyses the many important issues that are raised by what is probably the first case on Internet mistake - the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594. There is no doubt that the plaintiffs acted with indecent haste in the dead of the night in placing as many orders as each of them felt their financial resources credibly permitted them to do. 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. Chwee Kin Keong vs Digilandmall.com - Free download as Powerpoint Presentation (.ppt / .pptx), PDF File (.pdf), Text File (.txt) or view presentation slides online. Where common mistake is pleaded, the presence of agreement is admitted. Date of Verdicts: 12 April 2004, 13 January 2005. This was also the practice in the trade. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. A court will not enforce the plaintiffs purported contracts even if they are not void. This case is a paradigm example of an error on the human side. When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. He commenced practice in 2000 and currently practices with the law firm representing the plaintiffs in this action. 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. Added to his own purchases of 760 units, he was effectively responsible for the purchase of 1,090 laser printers. Arrival can also be immaterial unless a recipient accesses the e-mail, but in this respect e-mail does not really differ from mail that has to be opened. I must add that I did not really think this was necessary and subsequent events confirmed my perception. Soon after, the second, third and fifth plaintiffs took their claims to the media. In Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd, the English Court of Appeal decided that Solle v Butcher was wrong to hold that there was an equitable doctrine of common mistakes. They were selling a HP laser printer and an employee accidently made a mistake as to the price of the printer on their website.. Cases The appellants featured prominently because of the size of their orders. The modern approach in contract law requires very little to find the existence of consideration. Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 Chapelton v Barry UDC [1940] 1 KB 532 Chaplin v Hicks [1911] 2 KB 786 Chappell v Nestl [1960] AC 87 Chwee Kin Keong v Digilandmall.com [2006] 1 LRC 37 CIBC Mortgages v Pitt [1994] 1 AC 200 - Undue . 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. As most web merchants have automated software responses, they need to ensure that such automated responses correctly reflect their intentions from an objective perspective. As such, I would strongly appeal to you to reconsider your decision. 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. He graduated from NTU as a bachelor of business studies, specialising in financial analysis. The fifth plaintiff was also a member of this bridge group. 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. 109 This cautious statement by Chitty needs to be carefully reconsidered in the context of recent developments in this area of law. 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. This is an online dating and match-making service. 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, 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. 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. 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 . While commercial entities ought not to be given a licence to relax their vigilance, the policy considerations in refusing to enforce mistaken agreements militate against attaching undue weight to the carelessness involved in spawning the mistake. 19 Later in the morning, at about 4.15am, the fourth plaintiff sent the following e-mail to the first plaintiff, copied to the second plaintiff only: Subject: Re: IMPT HP Colour LaserJet going at only $66!! 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. 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. 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. 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. 122 For now it appears that a mistaken party can have two bites at the cherry. This was not noticed by the company until over 4,000 printers were ordered. It presents a textbook example of offer and acceptance. If this rule applies to international sales, is it sensible to have a different rule for domestic sales? The first plaintiffs callname in this exchange is Scorpio. After further sms exchanges, the second plaintiff contacted the fifth plaintiff on his mobile phone, urging him to return home to access the e-mail message he had just sent. 101 RSS Intellectual Property Office of Singapore Expand/Collapse. The prospective buyer has to make an offer to purchase which is then accepted by the merchant. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. Both parties displayed a considerable amount of imagination in dealing with them. 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. 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. From time to time there will be cases where this is an overriding consideration. Typical transactions are usually but not invariably characterised by (a)indecent alacrity; and (b)behaviour that any fair-minded commercial person similarly circumstanced would regard as a patent affront to commercial fairplay or morality. 79 The second, third and fifth plaintiffs tried their best to distance themselves from the quotes attributed to them. Two issues had arisen. I note that there have been powerful arguments made to the contrary. 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. He then carried out some checks on the Yahoo search engine to ascertain whether the printer model existed and whether the laser printer could be sold at more than $66. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. When pressed as to whether he visited other websites, he said he could not confirm that one way or the other. 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. Market orders: order to be executed immediately at the best available price. The case of Hartog v Colin & Shields [1939] 3All ER 566 is incontrovertibly the leading authority in this area. 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679, a case of common mistake. Needless to say, this goes to the very heart of the claims sustainability. He is also a director and shareholder in a company engaging in wholesale trade, together with the second and third plaintiffs. 67 MsToh subsequently did some research on how companies which had committed similar mistakes over the Internet handled the aftermath. Case law Chwee Kin Keong v Digilandmallcom Pte Ltd suggests that General Rule. The plaintiffs were not being candid when they portrayed very limited exchanges between themselves, dealing allegedly with only the profits to be made and their ability to resell the laser printers. 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. Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2 Civil Procedure - Costs - Principles - Respondent failing in every aspect of defence except on issue of unilateral mistake - Trial judge awarding full costs to respondent - Whether respondent entitled to full costs The plaintiffs and the defendant later reached an agreement to dispense with any further oral evidence, save for that of Tan Cheng Peng. The defendant is therefore entitled to recover in full its taxed costs from the plaintiffs. That is sufficient in these circumstances. [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. When, however, the cases provoked by these factual situations are analysed, they will be seen to fall, not into three, but only two distinct legal categories. Others do not. 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. Clout issue 43. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd, Whether amendment of particulars of pleadings at conclusion of submissions allowed, Facts raised in proposed amendments addressed during trial and submissions, Whether promise by buyer to pay for goods, in exchange for delivery of goods, constituted sufficient consideration, Electronic Transactions Act (Cap 88, 1999 Rev Ed), Whether automated e-mail responses from seller amounted to acceptance of buyer's offer, Seller's unilateral mistake as to price of goods posted on website, Whether online buyer entitled to enforce contract against seller, 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. 91 There is no real conundrum as to whether contractual principles apply to Internet contracts. 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. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. This view seems to suggest that principles of equity invariably provide an equally strong but more elastic second string to the bow. 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. This is without basis. He too affirmed from his searches that the normal price of the laser printer was in the region of US$2,000. I drew counsels attention to Halsburys Laws of Australia (Butterworths, 1992), vol6 at para 110-5550 which states: 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. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. The caption in each of the e-mails Successful Purchase Confirmation from HP online says it all. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. A typical but not essential defining characteristic of conduct of this nature is the haste or urgency with which the non-mistaken party seeks to conclude a contract; the haste is induced by a latent anxiety that the mistaken party may learn of the error and as a result correct the error or change its mind about entering into the contract. He admitted in cross-examination to being the lawyer for this group of people when they had questions like these in the present proceedings. Desmond: 13/01/20 01:43 coz the HP laser colour printer sells for at least 3 to 4k outside, Desmond 13/01/20 01:44 from US I heard is about USD 2k, Desmond 13/01/20 01:44 its HP and Laser and Coloured. These orders were placed at a price of S$66 each, whereas the actual price was S$3,854 each. 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. 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. He had left everything to his brother. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). chwee kin keong and others digilandmall.com pte ltd sghc 71 case number suit decision date 12 april 2004 high court coram rajah jc counsel name(s) tan sok ling Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew My Library Discovery Institutions Republic Polytechnic London School of Business and Finance 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. Pages 74 Ratings 100% (5) 5 out of 5 people found this document helpful; 8 The proper description of the laser printer, HPC9660A Color LaserJet 4600, was, as a result of the accident, replaced by the numerals 55; while the numerals 66 replaced the correct price of the laser printer priced at $3,854 and the numerals 77 replaced the original corporate price of the laser printer priced at $3,448. 74 Under product description on each webpage, instead of the actual description of the laser printer which in this case should have been HP9660A Color LaserJet 4600, only the numerals 55 appeared: this was the result of Samuel Teos earlier inadvertent input. It is not in dispute that the defendant made a genuine error. Palm tree justice will only serve to inject uncertainty into the law. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. The goods are not on offer but are said to be an invitation to treat. 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. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. To confine this exception to instances of fraud would make the concept of unilateral mistake redundant. 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. Cases of fraud and misrepresentation, and undue influence, are all catered for under other existing and uncontentious equitable rules. Delivery was merely a timing issue. The fourth plaintiffs single transaction with the Digilandmall website was confirmed by a similar automated response stating Successful Purchase Confirmation from Digilandmall. 155 The Internet has revolutionised commerce and radically altered the manner in which commercial interaction currently takes place. 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. [The Myth of Mistake in the English Law of Contract (1954) 70LQR 385 at 396]. The only court judgement on the theme is Chwee Kin Keong v. Digilandmall.com Pte Ltd, a judgement of the Singapore High Court. The price for equitable justice is uncertainty. The other knows, or must be taken to know, of his mistake. It seems to me that he was trying to tailor his evidence to fit neatly within the legal parameters of the plaintiffs case. in the High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd,2 from the perspective of economics. 60 Prior to placing his order, he was again contacted by the second plaintiff. Consideration was less than executory and non-existent. 99 Like the somewhat arbitrary selection of the postal rule for ordinary mail, in the ultimate analysis, a default rule should be implemented for certainty, while accepting that such a rule should be applied flexibly to minimise unjustness. It is not necessary to prove actual knowledge on the part of the non-mistaken party in order to ground relief, as in this context one is taken to have known what would have been obvious to a reasonable person in the light of the surrounding circumstances: Hartog v Colin and Shields [1939] AllER 566 (KBD); McMaster University; Stepps Investments, supra; Taylor, supra. The E-Mail Acceptance Rule. In these circumstances we can see no option but so to hold. 25 The mass e-mail at 2.58am is cursorily dismissed by counsel for the plaintiffs as poor use of language that ought not to be taken literally in light of the early hours of the morning. The e-mails had all the characteristics of an unequivocal acceptance. We are only concerned with the question whether relief might be given for common mistake in circumstances wider than those stipulated in Bell v Lever Bros Ltd [1932] AC 161. This judgment text has undergone conversion so that it is mobile and web-friendly. After the defendant intimated that it would not be delivering the laser printer, he sent an e-mail excoriating it, asserting, inter alia: Myself, and other people who have been disappointed by you decision, will definitely spread word of the companys lack of honour and integrity to everyone we know and all over the internet! 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. It appears that it wanted to leave no stone unturned and had therefore mounted a root and branch attack on the plaintiffs claims. The financial consequences could be considerable. Their reference to arbitraging was a nebulous fig leaf designed to legitimise their conduct in a cloak of legal and commercial respectability. From time to time they communicate with each other via the Internet and the short messaging system (sms). Inflexible and mechanical rules lead to injustice. 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. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. This may be too high a price to pay in this area of the law. Neither party raised any objections. Abstract The decision of V.K. 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.
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