This, by an uncanny coincidence, was the same person whom he had intended to consult in the resale of the laser printers a topic that he had discussed with the second plaintiff earlier that morning. 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. 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. Ltd. Yeo Tiong Min* I. In accordance with s15(1) of the ETA, acceptance would be effective the moment the offer enters that node of the network outside the control of the originator. 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. - This is also the position as regards friends: see Coward v. MIB (1963). If the common law continues to take precedence, then an essential mistake would void a contract ab initio. There are persuasive arguments against extending the litmus test of unconscionability to all mistake-type situations. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. 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. He claims visiting, inter alia, the Epinions and Hardwarezone websites, and though it appears that there was at the material time a discussion thread on the error on the Hardwarezone website, the fourth plaintiff denied having seen this. 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. He is 32 years old and conducts his own network marketing business. CISG-online | CISG-online.org The recipient rule is therefore more convenient and relevant in the context of both instantaneous or near instantaneous communications. Date of Verdicts: 12 April 2004, 13 January 2005. The notation in the checkout-order confirmation further confirmed that the defendants concern was with the delivery time rather than with qualifying its obligation by reference to stock availability as a condition precedent. A party may not snap at an obviously mistaken offer: McMaster. 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. However, not all principles will or can apply in the same manner that they apply to traditional paper-based and oral contracts. 151 The claims by the plaintiffs are audacious, opportunistic and contrived. 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. I must add that I did not really think this was necessary and subsequent events confirmed my perception. 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. This is without basis. There must be consensus ad idem. Landmark decision on unilateral mistake of fact in respect of the price of product listed on an online mall and the purchases made thereon . The plaintiffs and the defendant later reached an agreement to dispense with any further oral evidence, save for that of Tan Cheng Peng. 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. 17 Having called the second and third plaintiffs at about 2.00am, the first plaintiff also sent them, via e-mail, a weblink of the relevant HP website pages. Delivery was merely a timing issue. However, at the actual hearing of the applications, plaintiffs counsel opposed any amendments whatsoever to the defence and sought leave to withdraw the plaintiffs earlier unilateral amendments. While the first plaintiff was the source of the information concerning the price posting, the second plaintiff actively communicated with all of the plaintiffs (save the sixth plaintiff), throughout the material period. 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. 64 The fifth plaintiff was vague and tentative in many crucial aspects of his evidence. The non-mistaken partys appreciation that there is no real offer on the contracts literal terms undermines the basis of the objective theory and necessarily imports the lack of subjective intention on the part of the mistaken party. Counsels approach is flawed. His Internet research alone would have confirmed that. The defendant was entitled to stake its entire defence on the basis of common law, though it would have been prudent ex abundanti cautela to have asserted the equitable position in the alternative. This is much closer to the truth than the picture he has tried to paint in these proceedings. The terms of the offer are clear and unambiguous and the offeree accepts the offer according to its true sense, Although a mistaken party will not often be able to discharge the onus of showing that the other party, 118 The Canadian courts have been the most active common law courts explicating and developing this area of the law. 10 News of the rather extraordinary laser printer pricing began to spread like wildfire within the local Internet community. June Proctor, 1997, p. 13. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . V K Rajah JC. 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. Court name Singapore High Court. 28 In any event, the first plaintiffs commercial background and business experience alone would have amply alerted him to the likelihood of the pricing being a mistake, even without his conversation with Desmond. 119 It is apparent from this overview that the Canadian courts have integrated through their equitable jurisdiction the concept of common law mistake within the rubric of unconscionability. Merchants may find their contracts formed in foreign jurisdictions and therefore subject to foreign laws. In New Zealand, the legislature enacted the Contractual Mistake Act 1977. The decision of V.K. They are described by their counsel in submissions as risk takers, business minded and profit seeking. In Chwee Kin Keong and ors v Digilandmall.com Pte Ltd, 5 VK Rajah JC, as His Honour then was, decided against the rule-based approach in Moss v Malings. Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71. Market orders: order to be executed immediately at the best available price. 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. 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. In principle, there is no difference between amending particulars and amending say, a cause of action, defence or any other part of substance in a pleading. 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 . PDF Unilateral Mistake in Contract: Five Degrees of Fusion of Common Lawand COURT. He claimed that he had not asked her to do the research and that she had done it independently. Bulletin_11_2009 - CLJLaw Furthermore, they relied on a passage from Singapore Civil Procedure 2003 (Sweet & Maxwell Asia, 2003) at para20/8/47 that asserts: At the trial leave to amend particulars will as a rule be refused (Moss v Malings (1886) 83ChD 603). This contention is wholly untenable. Their reference to arbitraging was a nebulous fig leaf designed to legitimise their conduct in a cloak of legal and commercial respectability. 145 If the price of a product is so absurdly low in relation to its known market value, it stands to reason that a reasonable man would harbour a real suspicion that the price may not be correct or that there may be some troubling underlying basis for such a pricing. 152 This view has also found support in the Singapore context. 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. The first plaintiffs riposte, should such a situation come to pass, was to sue them lor. Has an agreement been reached or not? 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. Parties Chwee Kin Keong & Others v. Digilandmall.com Pte Ltd. Decision date 12/04/2004. Digilandmall - 502 SINGAPORE LAW REPORTS (REISSUE) [2005] 1 SLR(R 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. Having noted all this, I am nevertheless inclined towards the views expressed in the, 131 In a number of cases, including the present, it may not really matter which view is preferred. He worked in an accounting firm, Ernst and Young, for three years. In some unusual circumstances where a unilateral mistake exists, the law can find a contract on terms intended by the mistaken party. This view seems to suggest that principles of equity invariably provide an equally strong but more elastic second string to the bow. Having expressed my views on consideration, I should also add for good measure that, in any event, there is ample consideration. To my mind, the confirmation through the subsequent searches that the actual price of the laser printer was, in fact, US$2,000 would, if anything, have affirmed his belief that an error had occurred. This is not a case about bargain hunting which is a time honoured and perfectly legitimate pursuit. 111 This approach appears to have been endorsed by Judith PrakashJ in Ho Seng Lee Construction Pte Ltd v Nian Chuan Construction Pte Ltd [2001] 4 SLR 407 at [84] where it was also accepted that: The test is an objective one based on what a reasonable person would have known in similar circumstances. While this is the general principle for shop displays, it is open to a merchant to offer by way of an advertisement the mechanics of a unilateral or bilateral contract. The first plaintiffs callname in this exchange is Scorpio. Some of the plaintiffs appeared rather coy or ignorant in this regard but I did not find their performance believable. In other words, he really wanted to ascertain the true price of the laser printer. Case Update: B2C2 Ltd v Quoine Pte Ltd [2019] SGHC(I) 3; Quoine v B2C2 Such errors can be magnified almost instantaneously and may be harder to detect than if made in a face to face transaction or through physical document exchanges. 100 There is however another statute that ought to be taken into consideration in determining the appropriate default rule in e-commerce transactions. Scorpio: 13/01/20 01:46 hahahaha yeah lor .. aiyah why u only buy 3????? I do not accept that there were no discussions between them on the price posting being an error. There must be consensus ad idem. [emphasis added]. 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. Scorpio: 13/01/20 01:33 as many as I can! 50 Ow Eng Hwee, 29 years old, is another network marketing entrepreneur. Daniel was previously a partner and head of the technology practice at Messrs Rajah & Tann. Civil Procedure Pleadings . NZULR, vol. Doctrines and Institutions of Responsible Government. 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. I found his entire evidence relating to his communication with the first and other plaintiffs unsatisfactory and in many aspects incredulous. 125 The principal source of this view has been Lord DenningMR. 21 The first plaintiff must have realised at the outset that he would have to explain with a certain measure of credibility the purport and significance of all his Internet communications between 1.00am and 3.00am on 13January 2003. The CISG has currently been adopted by 95 Contracting States world-wide. 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. Claiming he was in a light-hearted kind of mood during his ICQ (acronym for I-Seek-You) conversation with Desmond, he insisted that this conversation should be taken neither seriously nor literally. At 4.16am he placed another order for one laser printer, by credit card, on the HP website. He classifies mistake in the following manner at 386: If attention is fixed merely on the factual situations, there are three possible types of mistake: common, mutual and unilateral. Kin Keong v Digilandmall.com Pte Ltd [2004 . Scorpio: 13/01/20 01:43 yeah man whats the original price? The web page entitled checkout order confirmation had a notation stating the earliest date on which we can deliver all the products to you is based on the longest estimated time of stock availability plus the delivery lead time. 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. In that sense, it is akin to ordinary posting. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. Rules of court which are meant to facilitate the conduct of proceedings invariably encapsulate concepts of procedural fairplay. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. 97 Different rules may apply to e-mail transactions and worldwide web transactions. 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. The essence of snapping up lies in taking advantage of a known or perceived error in circumstances which ineluctably suggest knowledge of the error. The leading Canadian decision in this area is the case of, 120 The widening of jurisdiction to embrace a broad equitable jurisdiction could well encourage litigious behaviour and promote uncertainty. Cory had chosen this mode of communication; therefore he 59 Upon duly accessing the HP website through the hyperlink sent to him by the second plaintiff, the fifth plaintiff ascertained that the laser printer was priced at $66. That said, it also offers new avenues of evidential proof offering intimate insights into realtime thought processes and reactions. . 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. 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. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. 3. 35 In addition to these conversations, the second plaintiff also accessed the Epinions website and sent a related e-mail to the first plaintiff. . 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. Rather, in my opinion, constructive knowledge alone will suffice to invoke equitys conscience. Desmond: 13/01/20 01:25 I think one of the wrong posted price, Scorpio: 13/01/20 01:25 damn dont tell me they realised their error already, Scorpio: 13/01/20 01:32 shiok can make a quick profit by selling them cheap shd buy more. The most recent and authoritative pronouncement in this area (. He said that he wanted to be sure that the offer on the HP website was genuine. A steady stream of decisions from common law courts indicate a measured but nevertheless distinctly incremental willingness to extend the scope of the exception to not just actual knowledge, but deemed or constructive knowledge as well. When the defendants discovered this mistake on their website, they sent an email to the complainants to say they would not be fulfilling this order. 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. [emphasis added]. Part of the training module included hands-on training with a new template for a Price Mass Upload function. (See for example the approach in, 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. The essential point remains: will prejudice be caused and/or are any policy considerations called into play. Here are some examples of case citations for other jurisdictions. Mistakes that negative consent do not inexorably result in contracts being declared void. 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. "Unilateral Mistake in Law and Equity: Solle v Butcher Reinstated" by CHWEE KIN KEONG and Others v DIGILANDMALL.COM Pte Ltd (2004) 2 SLR 594. Theoretically the supply of information is limitless. 42 Mark Yeow Kinn Keong has a Bachelor of Science (Economics) degree from the University of London. A viewer from any part of the world may want to enter into a contract to purchase a product as advertised. 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. Abstract. With reference to the judgement, the case explores pricing mistakes by online stores. 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. His credibility on the material points was dubious, at best. Unilateral Mistake at . The most recent and authoritative pronouncement in this area (per Lord Phillips of Worth Matravers in Shogun Finance Ltd v Hudson [2003] 3 WLR 1371 at [123]) states: 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). As this is a critical issue, it is imperative that each of their positions be carefully evaluated. 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. Phang, Controversy in Common Mistake [2003] Conv 247; Reynolds, Reconsider the Contract Textbooks (2003) 119LQR 177. When the defendant learnt of the error, it promptly removed the advertisement from its websites, and informed the plaintiffs as well as 778 others who had placed orders for a total of 4,086 laser printers that the price posting was an unfortunate error, and that it would therefore not be meeting the orders. The first and fifth plaintiffs ordered exactly a hundred laser printers each. While this case needs to be treated with some caution, as it appears to integrate concepts of law and equity, I respectfully agree with the approach in so far as it deals with deemed knowledge. The payment mode opted for was cash on delivery. Section13 of the ETA deems that a message by a partys automated computer system originates from the party itself. The complainants had ordered over 100 printers each at this price. . It deals with the process rather than the substance of how to divine the rule. The affidavits did not add anything new. (PDF) Intention to Create Legal Relations and the Reform of Contract Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] - YouTube 110 In OT Africa Line Ltd v Vickers Plc [1996] 1Lloyds Rep 700 at 703, ManceJ held that the objective theory ought not to apply if a party had knowledge that a mistake had occurred: The question is what is capable of displacing that apparent agreement. LOW, Kelvin Fatt Kin. 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. They were selling a HP laser printer and an employee accidently made a mistake as to the price of the printer on their website. This price was much lower than the actual retail price, and had been posted on the defendant's website by mistake. - Rebutting presumption: "The question [whether or not there is a binding contract] must depend on the 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. 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. 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. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. 118 The Canadian courts have been the most active common law courts explicating and developing this area of the law. After the defendant intimated that it would not be delivering the laser printer, he sent an e-mail excoriating it, asserting, I felt that I had done all that was conceivably within my means to ensure that the Price was. Web merchants ought to ensure that they either contract out of the receipt rule or expressly insert salient terms within the contract to deal with issues such as a choice of law, jurisdiction and other essential terms relating to the passing of risk and payment. Yet in other aspects, he could recollect, with crystal clear precision and clarity, details of what had transpired. 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 received this information through an sms message. Vincent. 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. They have a common interest in bridge and this helped to cement their friendship. This is one of the first prominent case that deals with the issue of web based contract. In the final analysis, it would appear that the likely existence of an internal error in pricing was clearly within his contemplation. Hwa Lai Heng Ricky v DBS Bank Ltd and another appeal and another 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. The businessmen saw a great opportunity and grabbed it placing an order for 1,000 printers. 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! 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. Desmond intimated that the defendant would give vouchers or special deals as a matter of equitable compensation should it not honour the purchase orders. 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. This is an inane argument. Chwee Kin Keong v Digilandmall.com Pte Ltd,( [2005]SGCA 2 ) . The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. The mere fact that they suddenly engage in predatory and atypical behaviour may in itself be telling. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. 7191 RSS High Court Expand/Collapse. He admitted in cross-examination to being the lawyer for this group of people when they had questions like these in the present proceedings. Given his professional and business background, he must have realised that the $66 price posting on the HP website was an error. Chwee Kin Keong v Digilandmall.com Pte Ltd. Case Nos: Suit 202/2003/E (for the first instance), CA/30/2004 (for the appeal) in the High Court of Singapore (at first instance), Singapore Court of Appeal.