127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. As a matter of fairness, allowing amendments at a late stage should usually go hand in hand with granting leave to the other party to adduce further evidence, if necessary. 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. How could one seek to calculate the profit margin before finding out the true market price of the laser printer? Indeed, upon re-examination, he attempted to distance himself from the portion of his affidavit suggesting that the possibility of a genuine mistake had crossed his mind after the first transaction. With reference to the judgement, the case explores pricing mistakes by online stores. . The first and fifth plaintiffs ordered exactly a hundred laser printers each. 3. Abstract. 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. Soon after, the second, third and fifth plaintiffs took their claims to the media. 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. A prospective purchaser is entitled to rely on the terms of the web advertisement. 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. There is no merit at all in this contention. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. 30 Tan Wei Teck is 30 years old. Vincent. 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. 4 The defendant is a company that sells information technology (IT) related products over the Internet to consumers. Ltd.1 has the makings of a student's classic for several reasons: it presents a textbook . In the eyes of Singapore law, purported contracts entered into in similar circumstances are void ab initio. The credit card payments had not been processed. In evidence he explained his conduct in the following manner: I felt that I had done all that was conceivably within my means to ensure that the Price was not a mistake. Ltd. has the makings of a student's classic for several reasons, including: 1. Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71. As most web merchants have automated software responses, they need to ensure that such automated responses correctly reflect their intentions from an objective perspective. 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. His counsel contends that the idea the price was a mistake never arose in the second plaintiffs mind; he was preoccupied with thinking about the profit potential of the laser printers. The plaintiffs also assert in their submissions that if contracts are only upheld if parties acted honourably there would be very few contracts left standing in the commercial world. Desmond: 13/01/20 01:24 just ordered 3 colour lazer printer for S$66.00 each. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. 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. 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 are persuasive arguments against extending the litmus test of unconscionability to all mistake-type situations. The price for equitable justice is uncertainty. 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. Adopting an objective standard, executory contracts have in fact been entered into and concluded between the parties. He was aware that the laser printers were targeted for business use. The effect of Solle v Butcher [1950] 1 KB 671 is not to supplement or mitigate the common law: it is to say that Bell v Lever Bros Ltd was wrongly decided. 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. The marrow of contractual relationships should be the parties intention to create a legal relationship. 107 As the law now stands, mistakes that are not fundamental or which do not relate to an essential term do not vitiate consent. A contract is normally concluded when an offer made by one party (the offeror) is accepted by the party to whom the offer has been made (the offeree). It is set in the context of internet contracting. It is not in dispute that the defendant made a genuine error. I found his entire evidence relating to his communication with the first and other plaintiffs unsatisfactory and in many aspects incredulous. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. After referring to a series of leading cases, including the often quoted decision of ThomsonJ in McMaster University v Wilchar Construction Ltd (1971), 22DLR(3d) 9 (Ont HCJ), Chief Justice McLachlin said at p37: 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: Solle, supra; Belle River Community Arena v WJC Kaufman Co (1978), 20OR(2d) 447, 4 BLR 231, 87DLR(3d) 761 (CA). 6 On Wednesday, 8January 2003 between 3.00pm and 4.00pm, DILs employees conducted a training session at the defendants premises. The rationale for this is that a court will not sanction a contract where there is no, 150 The plaintiffs have contended that this court ought to follow the decision in, A thread runs through our contract law that effect must be given to, 152 This view has also found support in the Singapore context. The defendants wanted to sell some hare skins to the plaintiffs. In submissions, his counsel attempted to play down the significance of both this conversation as well as the mass e-mail. This has clearly caused much confusion in the common law jurisdictions. As this is a critical issue, it is imperative that each of their positions be carefully evaluated. 24 While the first plaintiff conceded that he had communicated to the second and third plaintiffs the existence of a good deal, he maintained he did not discuss the possibility of the pricing being a mistake. Websites often provide a service where online purchases may be made. 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. If the defendant were right, they maintain, uncertainty would prevail in the commercial world and more particularly in Internet transactions. 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. 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. 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. The defendant programmed the software. In addition, he despatched e-mails to the fourth and fifth plaintiffs attaching a hyperlink to the HP website. 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?? The only court judgement on the theme is Chwee Kin Keong v. Digilandmall.com Pte Ltd, a judgement of the Singapore High Court. Altogether, the second plaintiff purchased 180 units, opting for cash on delivery as the payment mode. I have carefully considered the issue of costs and have noted that the defendant had, in the process of mounting a root and branch attack on the plaintiffs claim, pursued some unmeritorious contentions. No modern authority was cited to me suggesting an intended commercial transaction of this nature could ever fail for want of consideration. - See also Balfour v. Balfour (1919). There are two types of orders relevant: market orders and limit orders. 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. Both parties displayed a considerable amount of imagination in dealing with them. They deny having had any communications amongst themselves about the possibility, let alone probability, that the price posting on the website could have been a mistake. But it is difficult to see how that can apply here. This was borne out by the case of Chwee Kin Keong and Others v. Digilandmall.com Pte Ltd [2004] SGHC 71 where an autogenerated email with "Successful Purchase Confirmation" in its subject . 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. Borneo United Sawmills Sdn Bhd v. MUI Continental Insurance Bhd (Marine insurance - Loss of goods - Claim for loss of goods under Marine Cargo Policy) [2009] 8 CLJ 217. I do not accept that there were no discussions between them on the price posting being an error. 38 The second plaintiff came across as intelligent and resourceful. 85 Having stated the general rule, it is imperative that the rationale underlying this approach be understood. 116 The term snapping up was aptly coined by JamesLJ in Tamplin v James (1880) 15ChD 215 at 221. Solicita tu prueba. Desmond: 13/01/20 01:40 if any friend got extra printer u want? He confirmed through these searches that the usual price of the laser printers was in the region of US$2,000. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. In Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR (R) 594 (" Digilandmall.com "), the plaintiffs concerned placed orders over the Internet for a total of 1,606 Hewlett Packard commercial laser printers on the defendant (seller's) websites. Imagine the effect of this negative publicity on your future sales! It deals with the process rather than the substance of how to divine the rule. 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. 48 The third plaintiff annexed to his affidavit the transcript of the Channel NewsAsia report where he was quoted. As part of its business, it operates a website owned by Hewlett Packard (HP) at http://www.buyhp.com.sg (the HP website) where only HP products are sold. 2 Who is correct? From time to time there will be cases where this is an overriding consideration. 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. Indeed, I am satisfied to the contrary. 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. CISG-online is a research platform dedicated to the law and practice of the United Nations Convention on Contracts for the International Sale of Goods adopted in Vienna on 11 April 1980 (CISG), as well as related areas of international commercial law. The most recent and authoritative pronouncement in this area (. 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. I even went to both the HP Web-Site as well as the DigilandMall Web-site to see if the prices were the same. In addition, Tan Cheng Peng, the girlfriend and business associate of the third plaintiff, filed an affidavit detailing her communications with him. 89 In the circumstances, I had little hesitation in allowing the amendments sought by the defendant. [emphasis added]. 97 Different rules may apply to e-mail transactions and worldwide web transactions. 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. 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. 132 It can be seen from this brief excursus into the law of mistake that this is an abstruse area. 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. 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. 63 It is pertinent he too made web searches using the Google search engine. 143 The stark gaping difference between the price posting and the market price of the laser printer would have made it obvious to any objective person that something was seriously amiss. If the common law continues to take precedence, then an essential mistake would void a contract ab initio. Ltd. Yeo Tiong Min* I. 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. The terms of the offer are clear and unambiguous and the offeree accepts the offer according to its true sense, but it must have been obvious (and known by the offeree) that the offeror did not intend to make an offer in those terms. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. I granted leave to both parties to file applications to amend the pleadings. It had consciously not inserted any limits to the number of products a buyer could purchase again, quite clearly, to solicit more business. 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. Chwee Kin Keong and others v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502; [2005] SGCA 2. CHWEE KIN KEONG v DIGILANDMALL.COM Pte Ltd (2005) SGCA 2. 122 For now it appears that a mistaken party can have two bites at the cherry. (See for example the approach in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 1AllER 512.) 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. 50 Ow Eng Hwee, 29 years old, is another network marketing entrepreneur. There could be different considerations. 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. 136 First, it was suggested that no contracts had been formed as all the contracts were subject to availability and that a failure to adhere to the directive call to enquire prevented the contracts from coming into existence. But it is difficult to see how that can apply here. They then argue that as equitable defences have not been pleaded, the court has no alternative but to allow the claim. The payment mode opted for was cash on delivery. How come got such thing? 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. 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. 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 Her evidence was inconsequential and did not assist the plaintiffs. In Chwee Kin Keong v. Digilandmall.com Pte Ltd, one of the defendant's employees mistakenly uploaded the contents of a training template onto the defendant's website, resulting in the retail price of S$3,854 for a commercial laser printer on the website being replaced with the figure S$66. 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. 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. There is no larger noble principle, such as the sanctity of contracts, to be observed or protected in these proceedings. In the context of the present proceedings, the extra-judicial observations of Lord Steyn in Contract Law: Fulfilling the Reasonable Expectations of Honest Men (1997) 113LQR 433 at 433 are particularly apposite: A thread runs through our contract law that effect must be given to reasonable expectations of honest men. Free resources to assist you with your legal studies! The CISG has currently been adopted by 95 Contracting States world-wide. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. 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. The neutral citation of the case Chwee Kin Keong and others v Digilandmall.com Pte Ltd is as follows: This citation tells us that this was the 71st case in 2004 decided in the Singapore High Court. Not all one-sided transactions or bargains are improper. 14 The first, second and fourth plaintiffs became acquainted with each other when they studied at the Nanyang Technological University (NTU). Mistakes are usually synonymous with the existence of carelessness on the part of the mistaken party. Alternatively, knowledge may be readily inferred from what would be regarded as commonly known or notorious facts in the context of the transaction. He made Internet search enquiries as to whether the printer model existed and at what price it could be resold. He is currently employed as an accountant in an accounting firm, Ernst & Young. Therefore, administrative law encompasses Is the Right to Privacy Adequately Protected? 68 Yeow Kinn Oei is 29 years old and the brother of the third plaintiff. The individualistic ethic seeks to maximise individual goals and the community ethic seeks to set norms for commercial morality and to ensure that fair dealing and community cohesiveness are observed and maintained. You may find the status of your order by calling us at (phone number given) Special instructions: Please call to advise delivery date and time. 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]. The Canadian and Australian cases have moved along with the eddies of unconscionability. Quoine was operating as a market-maker on their own platform. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. There was no element of surprise or prejudice to the plaintiffs as the points raised had already been developed by the defendant and addressed by the plaintiffs. The fifth plaintiff was also a member of this bridge group. Case name. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. Here are some examples of case citations for other jurisdictions. The modern approach in contract law requires very little to find the existence of consideration. No cash had been collected. This may have created formatting or alignment issues. Scorpio: 13/01/20 01:43 yeah man whats the original price? After all, what would he do with 100 obsolete commercial laser printers? If he was prepared to commit this view in writing to a larger circle of 54 friends and business associates after his communication with the second and third plaintiffs, he would certainly have shared this view with his close friends with even greater candour and detail. Mutual promises, by all accounts, on the basis of existing case law, more than amply constitute consideration. 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 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.