The essence of unilateral mistake is the knowledge or deemed knowledge of a mistake and though fraud may often be present it is not an essential ingredient. This price was much lower than the actual retail price, and had been posted on the defendant's website by mistake. It seems to me that he was trying to tailor his evidence to fit neatly within the legal parameters of the plaintiffs case. He made Internet search enquiries as to whether the printer model existed and at what price it could be resold. In the final analysis, it would appear that the likely existence of an internal error in pricing was clearly within his contemplation. 22 The exchange between the first plaintiff and Desmond provides an intimate and revealing insight into the first plaintiffs thought process at the material time; the exchange fluctuated between bantering on the one hand, to nothing short of the candid exchange of thoughts on the other, revealing that the first plaintiff was fully aware of the likely existence of an error in pricing. , In unilateral mistake, only one of the parties is mistaken. 7191 RSS High Court Expand/Collapse. Desmond: 13/01/20 01:24 just ordered 3 colour lazer printer for S$66.00 each. 156 The plaintiffs claims are dismissed. It is significant that some of the plaintiffs had never made any prior Internet purchases before that eventful morning. The e-mails sent at 2.34am were also captioned Go load it now! 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. Mistakes are usually synonymous with the existence of carelessness on the part of the mistaken party. As part of its business, it operates a website owned by Hewlett Packard (HP) at, 16 When the first plaintiff eventually succeeded in accessing the HP website, he immediately placed an order for 100 laser printers at about, 17 Having called the second and third plaintiffs at about. The text of the e-mail further reinforces the point. 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. 87 It appeared to me that the extract from Singapore Civil Procedure 2003 relied on by the plaintiffs was blindly lifted from earlier editions of the English White Book without any consideration as to how it dovetails with the present procedural climate. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. 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). The leading Canadian decision in this area is the case of McMaster University v Wilchar Construction Ltd (1971) 22DLR(3d) 9 which, incidentally, was cited with approval by the Australian High Court in Taylor v Johnson. Scorpio: 13/01/20 01:42 I want at least one for personal use 2 would be good coz my gf needs one too any more than that would be a bonus ;-), Scorpio: 13/01/20 01:43 anyway, I dont mind buying over if you have frens who want to sell buy at twice the price!! 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. Administrative Law in Common Law Countries. 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). It is not in dispute that the defendant made a genuine error. Amendments after conclusion of submissions. Imagine the effect of this negative publicity on your future sales! 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. 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. I must add that I did not really think this was necessary and subsequent events confirmed my perception. It was only then that the defendant promptly took steps to remove all references to the laser printer from all three websites. 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. 60 Prior to placing his order, he was again contacted by the second plaintiff. There was a promise to pay made by the plaintiffs in exchange for the delivery of the requisite laser printers. This is clearly a mistake as they could not possible be sold for an amount that in a commercial situation. 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. In Chwee Kin Keong v . 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. The plaintiffs orders were processed by the defendants automated system and confirmation notes were automatically despatched to the plaintiffs within a few minutes. Computer glitches can cause transmission failures, garbled information or even change the nature of the information transmitted. In light of these general observations, I now address the law on unilateral mistake. Unlike instances of fraud, where it is said fraud unravels the existing contract, in instances of unilateral mistake, the very existence of the contract is negatived there is no consensus. The common law has drawn the line in Bell v Lever Bros Ltd. The recipients of this e-mail included the second, fourth, fifth plaintiffs and Tan Cheng Peng, the third plaintiffs girlfriend. . The other school of thought views the approach outlined earlier with considerable scepticism. In the light of that consideration we can see no way that Solle v Butcher can stand with Bell v Lever Bros Ltd. 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. Introduction The decision of V.K. The bites, however, may taste quite different and cause different sensations. 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. 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. 125 The principal source of this view has been Lord DenningMR. The credit card payments had not been processed. This can be supported by the decision of the High Court of Singapore in the case of Chwee Kin Keong v. Digilandmall.com Pte Ltd, in which Judicial Commissioner Rajah argued that "the party who selects the means of communication should bear the consequences of any unexpected events" . The modern approach in contract law requires very little to find the existence of consideration. The current general approach is correctly stated in Professor Jeffrey Pinslers Singapore Court Practice 2003 (LexisNexis, 2003) at para20/5/7: An amendment may be allowed even after both parties have made their closing submissions. I even went to both the HP Web-Site as well as the DigilandMall Web-site to see if the prices were the same. After all, what would he do with 100 obsolete commercial laser printers? Abstract The decision of V.K. The recipient rule is therefore more convenient and relevant in the context of both instantaneous or near instantaneous communications. I must add that these were far from being ordinary printers for home use. Has an agreement been reached or not? 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. In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. 130 It can be persuasively argued that given (a)the historical pedigree of the cases, (b)the dictates of certainty and predictability in the business community and (c)the general acceptance of the existence of distinct common law rules, it is preferable not to conflate these concepts. This is a case about predatory pack hunting. He also claimed to have talked to buyers in the market about reselling the laser printers and that the failure to procure the units would tarnish his reputation. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. 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 cannot be right. 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. 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. 85 Having stated the general rule, it is imperative that the rationale underlying this approach be understood. Limit orders: order to be executed only when the desired price is available. 41 The second plaintiff seems to have redefined the facts to achieve his objective in these proceedings. The ETA is essentially permissive. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. 147 It is improper for a party who knows, believes or ought, objectively speaking, to have known of a manifest error to seek commercial benefit from such an error. 120 The widening of jurisdiction to embrace a broad equitable jurisdiction could well encourage litigious behaviour and promote uncertainty. 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. 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. 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. 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. He has incorporated an Internet business Dreamcupid in which the second plaintiff has an interest. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. 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. The phrase call to enquire, it is contended, was in effect a condition precedent. 327. CHWEE KIN KEONG v DIGILANDMALL.COM Pte Ltd (2005) SGCA 2. 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. This is essentially a matter of language and intention, objectively ascertained. Desmond: 13/01/20 01:41 u want it for profit or personal use? Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR(R) 594; [2004] 2 SLR 594 (refd) Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332; [2009] 2 SLR 332 The reach of and potential response(s) to such an advertisement are however radically different. The defendants wanted to sell some hare skins to the plaintiffs. This is much closer to the truth than the picture he has tried to paint in these proceedings. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. 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. 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. COURT. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. It argues that the decision is both fair and economically grounded, and proposes an alternative view to that offered by classical contract law - one that sees fairness intertwined 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. 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. Having expressed my views on consideration, I should also add for good measure that, in any event, there is ample consideration. 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. But it is difficult to see how that can apply here. 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. This could account for the substantial number of Canadian cases in this area of the law. 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. While it is possible that the reporters could have exercised some latitude in penning the reports, they would in essence be conveying, at the very least, summaries and impressions of their interviews with the second, third and fifth plaintiffs. Voces del tesauro. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract, 26 I respectfully agree with the reasoning of ShawJ in. It is axiomatic that normal contractual principles apply but the contractual permutations will obviously be sometimes more complex and spread over a greater magnitude of transactions. 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. Clout issue 43. It takes the view that there is no jurisdiction in equity to rescind a contract that is valid at common law, on the basis of mistake. High Court Suit No 202 of 2003. 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. Abstract. 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?? http://www.epinions.com/HP_Color_LaserJet_4600_Series_Printer_Printers. The Vienna Sales Convention (the Convention) applies in Singapore as a consequence of the Sale of Goods (United Nations Convention) Act (Cap283A, 1996Rev Ed). Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. The Canadian and Australian cases have moved along with the eddies of unconscionability. Scorpio: 13/01/20 01:43 yeah man whats the original price? He admitted in cross-examination to being the lawyer for this group of people when they had questions like these in the present proceedings. Furthermore, unlike a fax or a telephone call, it is not instantaneous. The object of the exercise is to determine what each party intended, or must be deemed to have intended. 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. I invited both parties to indicate if they wished to amend their pleadings. Chwee Kin Keong v Digilandmall Pte Ltd The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from Singapore. In-house law team, Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502, Contract unilateral mistake Internet Contract Consensus ad Idem Meeting of the Minds Acceptance Offer Void Error. 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. To determine the profit potential, the second plaintiff had to take steps to ascertain the true market price of the laser printer which he did. 98 Once an offer is sent over the Internet, the sender loses control over the route and delivery time of the message. He claims visiting, 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. There are, however, other sound reasons to argue against such a rule in favour of the recipient rule. 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. 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. Has an agreement been reached or not? The defendant also sells HP products on its own website at http://www.digiland.com (the Digilandmall website). That is sufficient in these circumstances. Ltd.1 has the makings of a student's classic for several rea- 50 Ow Eng Hwee, 29 years old, is another network marketing entrepreneur. If the common law continues to take precedence, then an essential mistake would void a contract ab initio. 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. The contract stands according to the natural meaning of the words used. As such, I would strongly appeal to you to reconsider your decision. They are tainted and unenforceable. 46 He was therefore aware, even before he made his first purchase, that the actual price of the laser printer was in the region of US$2,000. Solicita tu prueba. The element of constructive knowledge based upon what a reasonable person ought to know is premised upon that person not being conscious of the error. A court is not likely to take a sympathetic view of such manner of amendment. 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. 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. The first plaintiffs purchase took place soon after the ICQ conversation with Desmond where Desmond had in no uncertain terms pitched the price of the laser printer between $3,000 to $4,000. 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. If coherence is to be restored to this area of our law, it can only be by declaring that there is no jurisdiction to grant rescission of a contract on the ground of common mistake where that contract is valid and enforceable on ordinary principles of contract law. He was aware that the laser printers were targeted for business use. This contention is wholly untenable. No harm trying right? So its going to be our reputation at stake, we thought we had a successful transaction.. Therefore, administrative law encompasses Is the Right to Privacy Adequately Protected? At 4.16am he placed another order for one laser printer, by credit card, on the HP website. 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. The fifth plaintiff was also a member of this bridge group. Indeed, I am satisfied to the contrary. 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. The essence is not so much in the nature of the amendment but rather in the consequences flowing from any amendment to the pleadings. 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. The quintessential approach of the law is to, 106 In the Singapore context, the first port of call when confronted with issues of contract law is inevitably Professor Andrew Phangs treatise on. They are not mechanical rules to be applied in a vacuum, devoid of a contextual setting. He tried to convey the impression that it never struck him that a mistake in the price posting of the laser printer could have occurred.
Famous Waterfalls 3 Letters, Articles C