This was not noticed by the company until over 4,000 printers were ordered. by the earlier decision of Chwee Kin Keong v Digilandmall.com [2005] 1 SLR(R) 502, where the Court of Appeal recognised the doctrine of unilateral mistake in equity, departing from the English position in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679; [2002] 3 WLR 1617; [2002] 4 All ER 689. 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. 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 154 Interestingly, of the 784 persons who placed 1,008 orders for 4,086 laser printers, only these six plaintiffs have attempted to enforce their purported contractual rights. . 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. 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. 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). In addition to the law of (especially, unilateral) mistake, issues relating to the formation of a contract will be considered (including the law relating to offer and . The other school of thought views the approach outlined earlier with considerable scepticism. The complainants had ordered over 100 printers each at this price. Consideration was less than executory and non-existent. 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, a fortiori in the sale of information and probably services, as the same constraints as to availability and supply may not usually apply to such sales. 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. 146 A purchaser in a case of apparent unilateral mistake, who purchases for genuine own use a product, may not always be viewed as guilty of engaging in snapping up. There is no merit at all in this contention. They even discussed the possible scenario of the defendant not honouring the transactions. The law of mistake has generated its own genre of mistakes and obfuscation. 40 When the fourth plaintiff responded to the first plaintiffs mass e-mail, he copied his response to the second plaintiff. In the absence of proper and full arguments on the issue of which rule is to be preferred, I do not think it is appropriate for me to give any definitive views in these proceedings on this very important issue. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. 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. 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. Lord Griffiths in, 87 It appeared to me that the extract from, 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 (, 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. Upon completing this sequence, each of the orders placed by the plaintiffs was confirmed by automated responses from the respective websites stating Successful Purchase Confirmation from HP online. 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. First, it is clear that the line of Australian and Canadian cases have broadened their equitable jurisdiction on the strength of dicta attributable principally to Lord Denning. 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. He admitted in cross-examination to being the lawyer for this group of people when they had questions like these in the present proceedings. Samuel Teo had used all these notional numerals on the training template. 140 The defendant has however properly asserted that there was a unilateral mistake that vitiated all the contracts. At 4.16am he placed another order for one laser printer, by credit card, on the HP website. Amendments after conclusion of submissions. How could one seek to calculate the profit margin before finding out the true market price of the laser printer? 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. [emphasis added]. 327. A contract will not be concluded unless the parties are agreed as to its material terms. 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. 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. 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. 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. Indeed this appears to be the underlying rationale for the unique legal characteristics attributed to an invitation to treat; see. In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. 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. 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. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. 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. 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. Mistakes that negative consent do not inexorably result in contracts being declared void. 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. A prospective purchaser is entitled to rely on the terms of the web advertisement. In light of these general observations, I now address the law on unilateral mistake. 55 The fourth plaintiff is technologically savvy and runs an Internet business with the second plaintiff. Ltd. has the makings of a student's classic for several reasons, including: 1. The e-mails sent at 2.34am were also captioned Go load it now! 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. 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. The court found that parties when . 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. Case law Chwee Kin Keong v Digilandmallcom Pte Ltd suggests that General Rule. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. It may be impractical and unjust to demand that the mistaken party actually prove the knowledge of a substantial number of people who effect numerous purchases. He subsequently sent the web link to the Epinions website to the first and second plaintiffs. Failure to do so could also result in calamitous repercussions. He seemed to suggest that in a number of cases going as far back as, He somewhat muddied the authority of his observations by apparently accepting in, 126 The Australian courts appear to have relied on the views of Lord DenningMR in, 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. . 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. There is constant tension in our legal system to accommodate the Janus-like considerations of fairness and finality. The decision of the British Columbia Court of Appeal in, 25 The law of mistake was discussed in depth by McLachlinCJBC in. In other words, he really wanted to ascertain the true price of the laser printer. Lord Phillips of Worth MatraversMR observed in a withering analysis at [156], [157], [160] and [161]: 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. No rights can pass to third parties. VKR a j a hJ C. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004. To assert that as a rule, leave to amend particulars will be refused, is both illogical and incorrect. High Court and Court of Appeal, recently, in a number of case . It appears there were a series of sms messages between them and at least a few telephone discussions while the purchases were being effected. 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. 42 Mark Yeow Kinn Keong has a Bachelor of Science (Economics) degree from the University of London. There cannot be any legitimate expectation of enforcement on the part of the non-mistaken party seeking to take advantage of appearances. 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. Cases of fraud and misrepresentation, and undue influence, are all catered for under other existing and uncontentious equitable rules. He conducted the searches to ascertain what the laser printers true price was. It was held that the contract between the parties was void. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. 138 Effectively, the defendant was attempting in this contention to assert that it could have its cake and eat it as well. This can result from human interphasing, machine error or a combination of such factors. It is not in dispute that the defendant made a genuine error. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. It is important not to force into a Procrustean bed principles that have to be modified or discarded when considering novel aspects of the Internet. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. With reference to the judgement, the case explores pricing mistakes by online stores. It is, in large measure, determined by making an objective appraisal of the exchanges between the parties. A court is not likely to take a sympathetic view of such manner of amendment. In the final stage of the process, after the payment mode was indicated, each of the plaintiffs was notified successful transaction your order and payment transaction has been processed. 80 Upon the conclusion of submissions, I directed counsel to appear before me. Here are some examples of case citations for other jurisdictions. The credit card payments had not been processed. Is this a case of poetic justice? It appears that it wanted to leave no stone unturned and had therefore mounted a root and branch attack on the plaintiffs claims. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. Websites often provide a service where online purchases may be made. In addition, he despatched e-mails to the fourth and fifth plaintiffs attaching a hyperlink to the HP website. 101 The applicable rules in relation to transactions over the worldwide web appear to be clearer and less controversial. 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. This was summarily resolved. It appears that he was also in touch with the fifth plaintiff as evidenced by an e-mail sent later that morning by the fifth plaintiff to both him and the second plaintiff containing research, 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. That is sufficient in these circumstances. 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. 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 He said he had by then discovered from his Internet searches that the price of the laser printer was in the region of $3,000. There was also no indication that the product was being sold on promotion. 47 Not content with making his own purchases, he woke up his brother and transacted 330 units on his behalf. 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. The CISG has currently been adopted by 95 Contracting States world-wide. 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. Indeed, the time may have come for the common law to shed the pretence of searching for consideration to uphold commercial contracts. 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. It will firstly discuss the fact that such a tort Our academic writing and marking services can help you! Furthermore, unlike a fax or a telephone call, it is not instantaneous. Leave was also given to the plaintiffs to adduce further evidence, if they so desired. If this rule applies to international sales, is it sensible to have a different rule for domestic sales? 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. Furthermore, they relied on a passage from, At the trial leave to amend particulars will as a rule be refused (, 84 It is axiomatic that a court will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the proceedings has been completed. There can be no other reasonable explanation. If the defendant were right, they maintain, uncertainty would prevail in the commercial world and more particularly in Internet transactions. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. 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. In the eyes of Singapore law, purported contracts entered into in similar circumstances are void ab initio. 81 Plaintiffs counsel thereafter responded somewhat curiously. The plaintiffs are, however, entitled to the cost of the amendments, in any event, which I fix at $1,000. This was presumably to render the training more lifelike. 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. The essence of snapping up lies in taking advantage of a known or perceived error in circumstances which ineluctably suggest knowledge of the error. He received this information through an sms message. 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 Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502: [2005] SGCA 2 Context: This Case deals with the issue of unilateral mistake. The fifth plaintiff, even if he had not been alerted by the second plaintiff, would have instinctively appreciated the existence of a manifest error without any prompting whatsoever. 123 One view maintains that the mistaken party can either attempt to have the contract declared void at common law if the mistake is fundamental or radical, or alternatively seek a remedy in equity, which could include rescission. At 4.16am he placed another order for one laser printer, by credit card, on the HP website. Chwee Kin Keong v. Digilandmall.com Pte. The contract stands according to the natural meaning of the words used. It is not in dispute that the defendant made a genuine error. The defendant also sells HP products on its own website at http://www.digiland.com (the Digilandmall website). Introduction The decision of V.K. This is in contrast to the English position where after several decades, 125 The principal source of this view has been Lord DenningMR. The second, third, fourth and sixth plaintiffs are the only individuals who ordered more than a hundred laser printers each. 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 bites, however, may taste quite different and cause different sensations. 63 It is pertinent he too made web searches using the Google search engine. Abstract The decision of V.K. HIGH COURT. 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. http://www.epinions.com/HP_Color_LaserJet_4600_Series_Printer_Printers. In this case we have heard full argument, which has provided what we believe has been the first opportunity in this court for a full and mature consideration of the relation between Bell v Lever Bros Ltd [1932] AC 161 and Solle v Butcher. I found his entire evidence relating to his communication with the first and other plaintiffs unsatisfactory and in many aspects incredulous. 2 [2004] 2 SLR 594 ("the Digilandmall case") (The decision was very recently affirmed by the Singapore Court of Appeal in Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] SGCA 2, albeit on somewhat different grounds and where the focus was on the law of unilateral mistake rather than formation of contract.)]. He claimed he wanted to find out how much profit he could make. 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. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. No cash had been collected. The elements of an offer and acceptance are ex facie satisfied in every transaction asserted in the plaintiffs claims. The pleadings, in such instances, merely formalise what is already before the court. LOW, Kelvin Fatt Kin. The plaintiffs attempted to take advantage of the defendants mistake over the Internet. Scorpio: 13/01/20 01:46 hahahaha yeah lor .. aiyah why u only buy 3????? No cash had been collected. Users may find that it may not be as forgiving as more traditional methods of communications. Our conclusion is that it is impossible to reconcile Solle v Butcher with Bell v Lever Bros Ltd. Indeed, I am satisfied to the contrary. 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. Digilandmall.com Pte Ltd. Looking for a flexible role? 68 Yeow Kinn Oei is 29 years old and the brother of the third plaintiff. 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. 78 In a Channel NewsAsia report datelined 15January 2003, it was reported that: Two of the customers, Mark Yeow and Malcolm Tan, have already spoken to their lawyers. CHWEE KIN KEONG and Others v DIGILANDMALL.COM Pte Ltd (2004) 2 SLR 594. 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.

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