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. In the fifth plaintiffs affidavit evidence, he asserted emphatically and unequivocally that at no point did I ever think that the price of the printers were a mistake. 101 The applicable rules in relation to transactions over the worldwide web appear to be clearer and less controversial. Furthermore, unlike a fax or a telephone call, it is not instantaneous. Merchants may find their contracts formed in foreign jurisdictions and therefore subject to foreign laws. No harm trying right? The payment mode opted for was cash on delivery. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. 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. Media reports after the discovery of the mistake. In his initial affidavit he admitted wondering whether the price was a mistake after his first order was placed. Despite the general views expressed in Taylor v Johnson (1983) 151CLR 422 on equitable mistake, it seems to be generally accepted in Australia as well, that this class of cases requires special mention and consideration. 35 In addition to these conversations, the second plaintiff also accessed the Epinions website and sent a related e-mail to the first plaintiff. When considering the appropriate rule to apply, it stands to reason that as between sender and receiver, the party who selects the means of communication should bear the consequences of any unexpected events. Prior to this he was an associate in the Intellectual Property and Technology Department of Allen & Gledhill. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. 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. Doctrines and Institutions of Responsible Government. 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679, a case of common mistake. He claimed he wanted to find out how much profit he could make. High Court and Court of Appeal, recently, in a number of case . 150 The plaintiffs have contended that this court ought to follow the decision in Taylor v Johnson and hold that the contract is not void under common law but voidable only in equity. The first and fifth appellants each ordered a hundred printers, while the other appellants ordered more than a hundred printers each. 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. 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. 14 The first, second and fourth plaintiffs became acquainted with each other when they studied at the Nanyang Technological University (NTU). 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. . It was found that the plaintiffs must have known or realised that the offer did not express the true intention of the defendants. June Proctor, 1997, p. 13. 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. If this rule applies to international sales, is it sensible to have a different rule for domestic sales? In common mistake, both parties make the same mistake. The decision of V.K. The bites, however, may taste quite different and cause different sensations. This is a case about predatory pack hunting. Nor should parties regard pleadings as assuming an amoeba-like nature, susceptible to constant reshaping. Abstract The decision of V.K. - This is also the position as regards friends: see Coward v. MIB (1963). He is also part of the Bel-Air network. Given that he left everything in the third plaintiffs hands, his legal position is, to that extent, identical to the third plaintiffs. Their The jurisdiction asserted in the former case has not developed. They are not entitled to the costs of the subsequent brief hearing, for reasons I now deal with summarily. 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. 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. 3. 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. If an offeree understands an offer in accordance with its natural meaning and accepts it, the offeror cannot be heard to say that he intended the words of his offer to have a different meaning. 77 Soon after the defendant informed the plaintiffs that they did not intend to deliver the laser printers, the plaintiffs took their claims to the press. Digilandmall.com Pte Ltd. There is therefore no pre-condition in law for a mistaken party to show an absence of carelessness to avail himself of this defence; the law precludes a person from seeking to gain an advantage improperly in such circumstances. He in effect forwarded the first plaintiffs e-mail to them. As such, I would strongly appeal to you to reconsider your decision. The court held that the acceptance has been completed once it is posted although here, the defendants actually did not receive the letter before they sold it to someone else. We are, Our conclusion is that it is impossible to reconcile, 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, 129 The careful analysis of case law undertaken by that court yields a cogent and forceful argument that Lord DenningMR was plainly attempting to side-step, 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. In fact, he and the fourth plaintiff have jointly conceptualised and implemented an Internet-related business. Websites often provide a service where online purchases may be made. In the context of its true market value the absurd price of $66 was almost the commercial equivalent of virtually giving away the laser printers. Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . 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. It would be illogical to have different approaches for different product sales over the Internet. 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. Case Summary If the offeree knows that the offeror does not intend the terms of the offer to be those that the natural meaning of the words would suggest, he cannot, by purporting to accept the offer, bind the offeror to a contract: Hartog v Colin & Shields [1939] 3All ER 566; Smith v Hughes (1871) LR6 QB 597. The case involved the sale of printers by the defendant at a price of S$66. The defendant also sells HP products on its own website at http://www.digiland.com (the Digilandmall website). 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. This is not a case about bargain hunting which is a time honoured and perfectly legitimate pursuit. 681) when the court had to decide the moment of contr act formation by post. It has been pointed out that the pedigree of these decisions is dubious, to say the least (see [128] and [129] infra). 64 The fifth plaintiff was vague and tentative in many crucial aspects of his evidence. Even if it were to be held that there is now a general test of unconscionability applicable to all types of mistake, the plaintiffs contentions will not take them far. The defendant even had its terms and conditions posted on its website. 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. The contract was held to be void because there was no consensus on the terms. It can be persuasively argued that e-mails involving transactions embraced by the Convention are only effective on reaching the recipient. 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. 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 contract stands according to the natural meaning of the words used. The price for equitable justice is uncertainty. 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. A contract will not be concluded unless the parties are agreed as to its material terms. He made Internet search enquiries as to whether the printer model existed and at what price it could be resold. 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. Indeed, the time may have come for the common law to shed the pretence of searching for consideration to uphold commercial contracts. He said that he wanted to be sure that the offer on the HP website was genuine. The unconstrained exchange that followed between the two is both revealing and compelling. This can result from human interphasing, machine error or a combination of such factors. The plaintiffs and the defendant later reached an agreement to dispense with any further oral evidence, save for that of Tan Cheng Peng. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. 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). The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. The fact that the acceptance was automatically generated by a computer software cannot in any manner exonerate the defendant from responsibility. He conducted the searches to ascertain what the laser printers true price was. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. Who bears the risk of such mistakes? Web Communication: A Review Of Chwee Kin Keong And Others v. Digilandmall.com pte ltd by Rokiah Kadir [2009] 8 CLJ xxi. The Vienna Sales Convention (the Convention) applies in Singapore as a consequence of the Sale of Goods (United Nations Convention) Act (Cap283A, 1996Rev Ed). For example, in the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594 ("Digilandmall"), affirmed on appeal in Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502 without considering this particular issue, V K Rajah JC (as he then was) observed, as follows (at [139]): In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. 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. 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. He had left everything to his brother. Notwithstanding, the defendant does not take issue with this as the sixth plaintiffs orders were received and the appropriate automated responses generated. Ltd.1 has the makings of a student's classic for several reasons: it presents a textbook . 83 The defendant maintained that there was no element of surprise and/or prejudice arising from the amendments. COOKE v OXLEY (1790) 3 T. R. 653. Some of the plaintiffs appeared rather coy or ignorant in this regard but I did not find their performance believable. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. In Chwee Kin Keong v. Digilandmall.com Pte Ltd ,1 one of the defendant's employees mistakenly uploaded the contents of a training template onto the defendant's website, resulting in the retail price of S$3,854 for a commercial laser printer on the website being replaced with the figure S$66. The modern approach in contract law requires very little to find the existence of consideration. Indeed this appears to be the underlying rationale for the unique legal characteristics attributed to an invitation to treat; see. The plaintiffs attempted to take advantage of the defendants mistake over the Internet. I reject this. Others do not. 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. 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. 49 Tan Cheng Pengs brief evidence did not really assist the third plaintiff. 34 He also visited the Digilandmall website to familiarise himself with their standard terms and conditions. The plaintiffs refute that the error exonerates the defendant; they insist that a concluded contract is sacrosanct and must be honoured. Gill & Duffus Landauer Ltd v London Export Corp GmbH [1982] 2 Lloyd's Rep. 627. CLARK, B. chwee kin keong v digilandmall high court. He graduated with an accounting degree from NTU. 76 On Monday, 13January 2003, at about 9.15am, an employee of the defendant received a call from a prospective customer inquiring whether the defendant was aware of the posted price of $66 for the laser printers on the HP website. *You can also browse our support articles here >. The financial consequences could be considerable. 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. Where common mistake is pleaded, the presence of agreement is admitted. He claims he then accessed the US HP website either through a Google web search engine or by abbreviating the url of the HP website. I do not know if this is an error or whether HP will honour this purchase. 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. 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 . He is 32 years old and conducts his own network marketing business. This can be before or during the trial, or after judgment or on appeal. I note that Chitty at para5-089, fn25 sagely opines that Taylor v Johnson does not represent English law, at least, where the other party knows that a mistake has been made. Thus, while the idea of snapping up may well apply in cases one side is aware of the other sides error, I do not think it can be applied literally in the constructive knowledge cases. A court is not likely to take a sympathetic view of such manner of amendment. The following excerpts are particularly relevant: Desmond: 13/01/20 01:17 go hp online now. 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. 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. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. The amounts ordered and the hurried and hasty manner in which the orders were executed are of cardinal importance. It is essential that the law be perceived as embodying rationality and fairness while respecting the commercial imperative of certainty. 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 . 122 For now it appears that a mistaken party can have two bites at the cherry. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. On any objective construction, the presumed intention must be that in the context of its confirmatory content, the words call to enquire in the availability portion of the contract related to the timing of the delivery rather than being subject to physical availability of the laser printer or stock. 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. 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. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. I found their attempts to play down the impact of the statements which they had, to all intents and purposes, willingly and deliberately made earlier, unconvincing. This is in contrast to the English position where after several decades, 125 The principal source of this view has been Lord DenningMR. 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. There is often, but not inexorably, a co-relationship between the timing when the amendment is sought and the adverse consequences for the other party. 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 programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. The CISG has currently been adopted by 95 Contracting States world-wide. SingletonJ held at 568: The offer was wrongly expressed, and the defendants by their evidence, and by the correspondence, have satisfied me that the plaintiff could not reasonably have supposed that that offer contained the offerers real intention. 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. With reference to the judgement, the case explores pricing mistakes by online stores. Amendments after conclusion of submissions. He claims visiting, 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. Different protocols may result in messages arriving in an incomprehensible form. No rights can pass to third parties. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. 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 e-mails had all the characteristics of an unequivocal acceptance. It is postulated by many of the leading treatises that equity has a broad church incorporating a more elastic approach and a court of equity may rescind a contract, award damages or, in limited circumstances, fashion a remedy, to suit the justice of the matter. As the reports contradict portions of their present evidence, they have indirectly tried to cast doubt on the accuracy of the reports in so far as the reports referred to them. COURT. As with any normal contract, Internet merchants have to be cautious how they present an advertisement, since this determines whether the advertisement will be construed as an invitation to treat or a unilateral contract. Desmond: 13/01/20 01:33 how many u intend to get? 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. 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. A prospective purchaser is entitled to rely on the terms of the web advertisement. Normally, however, the task involves no more than an objective analysis of the words used by the parties. No cash had been collected. 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. As the Channel NewsAsia report so succinctly summarised they saw a great opportunity and grabbed it. A number of them have very close relationships, with some of them even sharing common business interests. If he was prepared to commit this view in writing to a larger circle of 54 friends and business associates, 47 Not content with making his own purchases, he woke up his brother and transacted 330 units on his behalf. Caveat emptor remains a cornerstone of the law of contract and business relationships. It is therefore incumbent on the web merchant to protect himself, as he has both the means to do so and knowledge relating to the availability of any product that is being marketed. As most web merchants have automated software responses, they need to ensure that such automated responses correctly reflect their intentions from an objective perspective. As for the common law on unilateral mistake, it is claimed that the acid test for its application is not satisfied. At 4.16am he placed another order for one laser printer, by credit card, on the HP website. 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. A viewer from any part of the world may want to enter into a contract to purchase a product as advertised. It appears that it wanted to leave no stone unturned and had therefore mounted a root and branch attack on the plaintiffs claims. 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. reference was made by the court to "fraud or a very high degree of misconduct" before the non- mistaken party could be . It appears that in Convention transactions, the receipt rule applies unless there is a contrary intention. In this case, Defendant was selling IT products over internet in Singapore. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004] SGHC 71. The Canadian and Australian cases have moved along with the eddies of unconscionability. Transactions over websites are almost invariably instantaneous and/or interactive. The most recent and authoritative pronouncement in this area (. Part of the training module included hands-on training with a new template for a Price Mass Upload function. E-mails are processed through servers, routers and Internet service providers. 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. See now, also, 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. Administration law is the actions made by a government, which adversely affects an individual. 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. Prior to being self-employed, he was a corporate banker with Standard Chartered Bank, Singapore, for four years. u think this is the 1970s?? It is asserted that since mistake had not been pleaded as an equitable defence, equity cannot be invoked by the defendant.
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