The amounts ordered and the hurried and hasty manner in which the orders were executed are of cardinal importance. The decision ofV.K. High Court and Court of Appeal, recently, in a number of case . When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. 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.)]. 6 On Wednesday, 8January 2003 between 3.00pm and 4.00pm, DILs employees conducted a training session at the defendants premises. 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. Taking into account the nature of the claims, the conduct of these proceedings by the plaintiffs and how the case for the plaintiffs unravelled, it would not, all things considered, be appropriate to interfere with the normal order of costs which ought to follow the result. Chwee Kin Keong v Digilandmall.com Pte Ltd,( [2005]SGCA 2 ) . 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. From time to time there will be cases where this is an overriding consideration. 94 Historically, the common law has recognised an anomaly in the contractual features pertaining to a display of goods for sale. Scorpio: 13/01/20 01:33 as many as I can! 109 This cautious statement by Chitty needs to be carefully reconsidered in the context of recent developments in this area of law. Evidence was given that if phone calls were indeed placed, they would from time to time limit the number of sales. Notwithstanding occasional failure, most e-mails arrive sooner rather than later. I do not know if this is an error or whether HP will honour this purchase. It cannot also be seriously argued that there was no intention to enter into a legal relationship. The essence is not so much in the nature of the amendment but rather in the consequences flowing from any amendment to the pleadings. If the common law continues to take precedence, then an essential mistake would void a contract ab initio. 2 Who is correct? He is also described as the sole proprietor and manager of two other businesses that provide business support and consultancy. It has been pointed out that the pedigree of these decisions is dubious, to say the least (see [128] and [129] infra). The case went before both the High Court and the Court of Appeal. [emphasis added]. Singapore Court of Appeal. Indeed, I am satisfied to the contrary. He subsequently sent the web link to the Epinions website to the first and second plaintiffs. . This price was much lower than the actual retail price, and had been posted on the defendant's website by mistake. When, however, the cases provoked by these factual situations are analysed, they will be seen to fall, not into three, but only two distinct legal categories. There are in this connection two schools of thought. 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 coz they might change it anytime, are all compelling in reflecting his state of mind and awareness that an error had occurred. Having pointed out 6 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 . The defendant programmed the software. The goods are not on offer but are said to be an invitation to treat. They are not mechanical rules to be applied in a vacuum, devoid of a contextual setting. The plaintiffs are, however, entitled to the cost of the amendments, in any event, which I fix at $1,000. One of the few cases on electronic contract formation in Singapore was Chwee Kin Keong v Digilandmall. 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 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. There was also no indication that the product was being sold on promotion. 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. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. The transcript states that the third and the fifth plaintiffs saw a great opportunity and grabbed it. The complainants argued that they were not aware that this price was a mistake and wanted the binding contract to be fulfilled. Alarm bells would have sounded immediately. The argument is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void. He admitted in cross-examination to being the lawyer for this group of people when they had questions like these in the present proceedings. 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. In the light of that consideration we can see no way that Solle v Butcher can stand with Bell v Lever Bros Ltd. So there is a contract and therefore the defendant is liable in breach of contract. He confirmed through these searches that the usual price of the laser printers was in the region of US$2,000. Borneo United Sawmills Sdn Bhd v. MUI Continental Insurance Bhd (Marine insurance - Loss of goods - Claim for loss of goods under Marine Cargo Policy) [2009] 8 CLJ 217. Having noted all this, I am nevertheless inclined towards the views expressed in the Great Peace Shipping case for the reasons articulated by Lord PhillipsMR. Where common mistake is pleaded, the presence of agreement is admitted. 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. The Canadian and Australian cases have moved along with the eddies of unconscionability. The sixth plaintiff told his brother to order some for him, without specifying how many laser printers he wanted or how he intended to pay for the laser printers. If anything, certain portions of the affidavits raised even more doubts about the plaintiffs credibility. 71 The sixth plaintiffs position can be dealt with very briefly. Indeed this appears to be the underlying rationale for the unique legal characteristics attributed to an invitation to treat; see. 35 In addition to these conversations, the second plaintiff also accessed the Epinions website and sent a related e-mail to the first plaintiff. 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. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. He was opportunistic in effecting his purchases, active in co-ordinating with the other plaintiffs on the eventful morning, and economical with the truth in his evidence. Reference this The text of the e-mail further reinforces the point. Kin Keong v Digilandmall.com Pte Ltd [2004 . 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 unusual product description of 55 which the fourth plaintiff alone reluctantly acknowledged as weird and unusual would have been a red light signal that an error had occurred. Amendments after conclusion of submissions. The individualistic ethic seeks to maximise individual goals and the community ethic seeks to set norms for commercial morality and to ensure that fair dealing and community cohesiveness are observed and maintained. There were altogether 1,008 purchase orders for the laser printers placed by 784 individuals between 8 and 13January 2003. 132 It can be seen from this brief excursus into the law of mistake that this is an abstruse area. 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. There is one important exception to this principle. 41 The second plaintiff seems to have redefined the facts to achieve his objective in these proceedings. 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. It is set in the context of internet contracting. These statements are not to be interpreted as a clarion call to rewrite commercial agreements because of a partys unreasonable or ignoble behaviour. Thus the task of ascertaining whether the parties have reached agreement as to the terms of a contract can involve quite a complex amalgam of the objective and the subjective and involve the application of a principle that bears close comparison with the doctrine of estoppel. 38 The second plaintiff came across as intelligent and resourceful. 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 placed his first order for 50 units at about 2.58am, and his second order for another 50 units at 3.22am, again through the HP website. Theoretically the supply of information is limitless. It is simply inconceivable that when he entered into the purchase transaction, he did not know, or at the very least did not have a real and abiding belief that the price posting was an error. 16 When the first plaintiff eventually succeeded in accessing the HP website, he immediately placed an order for 100 laser printers at about 2.05am, charging the transaction to his credit card. The decision of the British Columbia Court of Appeal in, 25 The law of mistake was discussed in depth by McLachlinCJBC in. There must be consensus ad idem. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. 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. He made Internet search enquiries as to whether the printer model existed and at what price it could be resold. be rebutted" (per Salmon LJ in Jones v. Padavatton (1969)). In common mistake, both parties make the same mistake. Administrative Law in Common Law Countries. 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. It is essential that the law be perceived as embodying rationality and fairness while respecting the commercial imperative of certainty. 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. 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. In a Straits Times report dated 15January 2003 captioned $66 printer error angry customers seek lawyers help, it was reported that the second plaintiff, described as a network marketer had on 13January at about 2.00am stumbled upon a offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. Ltd} has the makings of a student's classic for several rea sons: it presents a textbook example of offer and acceptance; it is set in the context 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. I note that there have been powerful arguments made to the contrary. Desmond: 13/01/20 01:40 if any friend got extra printer u want? The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. The point is, there is a chasm between a clarification amendment and a new or distinct issue being raised at a later stage. Scorpio: 13/01/20 01:25 ok but how come got such a good deal? Put another way, that decision seems to indicate that the effect of a unilateral mistake is only to render a contract unenforceable rather than void. 63 It is pertinent he too made web searches using the Google search engine. Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 stated: [T]o allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. In the Singapore context a similar approach has been adopted by the Court of Appeal in Aircharter World Pte Ltd v Kontena Nasional Bhd [1999] 3 SLR 1 at [30] and [31], and Projection Pte Ltd v The Tai Ping Insurance Co Ltd [2001] 2 SLR 399 at [15]. 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]): This judgment text has undergone conversion so that it is mobile and web-friendly. 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. Similar works. The object of the exercise is to determine what each party intended, or must be deemed to have intended. This e-mail was sent only, 29 The first plaintiff struck me as an opportunistic entrepreneur. 79 The second, third and fifth plaintiffs tried their best to distance themselves from the quotes attributed to them. The first plaintiffs riposte, should such a situation come to pass, was to sue them lor. The plaintiffs attempted to take advantage of the defendants mistake over the Internet. They are tainted and unenforceable. 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. The issue could be critical where third party rights are in issue as in Shogun. 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. This constituted more than a quarter of the total number of laser printers ordered. [emphasis added]. When pressed as to whether he visited other websites, he said he could not confirm that one way or the other. 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. After all, what would he do with 100 obsolete commercial laser printers? A real product number HP9660A was inserted in the new template as the prototype for which fictional prices were to be changed on the three relevant websites. An e-mail, while bearing some similarity to a postal communication, is in some aspects fundamentally different. , In mutual mistake, the parties misunderstand each other and are at cross-purposes. Yong Pung HowCJ in, [T]he function of the court is to try as far as practical experience allows, to ensure that the, Tan Sok Ling, Malcolm Tan and Mohan Das Vijayaratnam (Tan S L and Partners) for plaintiffs;
Sometimes this is made explicit by judges; more often it is the implied basis of the courts decision. This was presumably to render the training more lifelike. They have taken into account both the English and Australian authorities in distilling the jurisprudence in this area. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. This is an area that needs to be rationalised in a coherent and structured manner. 80 Upon the conclusion of submissions, I directed counsel to appear before me. One circumstance falling clearly within the equitable jurisdiction of the Court to relieve against mistake is that where one party, knowing of the others mistake as to the terms of an offer, remains silent and concludes a contract on the mistaken terms: It is not necessary to prove actual knowledge on the part of the non-mistaken party in order to ground relief, as, In summary therefore, the equitable jurisdiction of the Courts to relieve against mistake in contract comprehends situations where one party, who knows or ought to know of anothers mistake in a fundamental term, remains silent and snaps at the offer, seeking to take advantage of the others mistake. If stock of a product has been exhausted, a prospective purchaser cannot sue for specific performance or damages as he has merely made an offer that has not been accepted by the merchant. Pginas: 93: High Court - Suit n 202 of 2003. 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 what they knew, how they knew it and when they knew it. This short but highly significant e-mail reads: Subject: IMPT HP Colour LaserJet going at only $66!! 153 These statements of jurisprudence are of cardinal importance in understanding and fashioning the law of contract. 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. There can be no other reasonable explanation. I must add that these were far from being ordinary printers for home use. 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. It is asserted that since mistake had not been pleaded as an equitable defence, equity cannot be invoked by the defendant. I am not prepared, after full consideration, to assume that the reporters misquoted the facts. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. Prior to this he was an associate in the Intellectual Property and Technology Department of Allen & Gledhill. 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. If the defendant were right, they maintain, uncertainty would prevail in the commercial world and more particularly in Internet transactions. But that, surely, is a question as to where the common law should draw the line; not whether, given the common law rule, it needs to be mitigated by application of some other doctrine. 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 defendants argued this pricing was a unilateral mistake and that the complainants took advantage of this. Despite their familial relationship, the legal relationship between the two of them was that of agent and principal. In his initial affidavit he admitted wondering whether the price was a mistake after his first order was placed. 70 The third plaintiff proceeded to place orders on behalf of the sixth plaintiff on the HP website. Daniel was previously a partner and head of the technology practice at Messrs Rajah & Tann. In its pleaded case, the defendant asserts that the automated e-mail responses it sent out in the early hours of 13January 2003 did not confirm that stock of the laser printers were available and would be delivered. Furthermore, unlike a fax or a telephone call, it is not instantaneous. 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. Before dealing with the point of real substance, it is appropriate to briefly deal with two of the less meritorious contentions advanced. 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. Doctrines and Institutions of Responsible Government. Is this a case of poetic justice? V K Rajah JC. Neither party raised any objections. This can be before or during the trial, or after judgment or on appeal. We can understand why the decision in Bell v Lever Bros Ltd did not find favour with Lord DenningMR. An equitable jurisdiction to grant rescission on terms where a common fundamental mistake has induced a contract gives greater flexibility than a doctrine of common law which holds the contract void in such circumstances. 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. 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. I do not accept that there were no discussions between them on the price posting being an error. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. He offered to buy a laser printer from Desmond at double the price, that is $132. V K Rajah JC: Para continuar leyendo. 57 Malcolm Tan is 30 years old and a practising advocate and solicitor. 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. 33 After his first order, the second plaintiff contacted the fourth and fifth plaintiffs informing them about the laser printers. It is germane to observe that none of the cases purporting to follow Solle v Butcher [1950] 1 KB 671 have with any degree of clarity defined the parameters of equitable mistake in contradistinction to a common law mistake. 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. . The programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. China-Singapore "One Belt One Road" International Business Cases Digest Part 1 -"" () 457-463 (2020, published by the Singapore and People's Republic of China Supreme Courts . Established common law principles, in the arena of mistake, ought not be trifled with unless they are so obviously anachronistic and ill-suited to commercial and legal pragmatism. It appears that in Convention transactions, the receipt rule applies unless there is a contrary intention. He appears to have been in constant communication with the second plaintiff and to have received and read the mass e-mail from the first plaintiff after he placed his first purchase order. Mistakes that negative consent do not inexorably result in contracts being declared void. When, however, the cases provoked by these factual situations are analysed, they will be seen to fall, not into three, but only two distinct legal categories. It has been pithily said that the rules of procedure should be viewed as a handmaiden and not a mistress, to be slavishly followed. CLARK, B. This is a case about predatory pack hunting. 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. 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. six plaintiffs ordered 1,606 printers. In Chwee Kin Keong v . Digilandmall.com Pte Ltd. High Court Suit No 202 of 2003. 151 The claims by the plaintiffs are audacious, opportunistic and contrived. 58 The fifth plaintiff was first informed by the second plaintiff at about 2.30am about cheap laser printers being available for purchase. Phang, Controversy in Common Mistake [2003] Conv 247; Reynolds, Reconsider the Contract Textbooks (2003) 119LQR 177. Inflexible and mechanical rules lead to injustice. Date of Verdicts: 12 April 2004, 13 January 2005. - Rebutting presumption: "The question [whether or not there is a binding contract] must depend on the 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. This thread helps to rationalise the development of the common law but ought not to be viewed as supporting the existence of a general test of commercial morality tantamount to the test of unconscionability invoked by equity. In Associated Japanese Bank (International) Ltd v Credit du NordSA [1989] 1 WLR 255 at 266, Lord DenningMRs views were doubted and described as reflecting an individual opinion by SteynJ (as he then was). Given that he left everything in the third plaintiffs hands, his legal position is, to that extent, identical to the third plaintiffs. 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. 66 The fifth plaintiff also gave evidence that the next morning, when he logged on his computer, he noted that a Hong Kong lawyer friend, Coral Toh, was also logged onto her computer.
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