Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . It does not purport to regulate e-commerce but attempts to facilitate the usage of e-commerce by equating the position of electronic records with that of written records, thus elevating the status of electronic signatures to that of legal signatures. The law of agency and that pertaining to the formation of contracts are expressly recognised in s13(8) of the ETA as continuing to apply to electronic transactions. Chwee Kin Keong v Digilandmall.com (2005) - Singaporean case 3d printers sold for $66 instead of $3,800. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. Having said that, this exception must always be prudently invoked and judiciously applied; the exiguous scope of this exception is necessary to give the commercial community confidence that commercial transactions will almost invariably be honoured when all the objective contractual indicia are satisfied. Where common mistake is pleaded, the presence of agreement is admitted. 94 Historically, the common law has recognised an anomaly in the contractual features pertaining to a display of goods for sale. Interestingly, Desmond also remarked to the first plaintiff that he wasnt greedy before I tok to u. The rules of offer and acceptance are satisfied and the parties are of one mind. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. There was a promise to pay made by the plaintiffs in exchange for the delivery of the requisite laser printers. 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. In my view this further undermines the essence of the plaintiffs case that they never contemplated that the pricing was a mistake. chwee kin keong and others digilandmall.com pte ltd sghc 71 case number suit decision date 12 april 2004 high court coram rajah jc counsel name(s) tan sok ling Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew My Library Discovery Institutions Republic Polytechnic London School of Business and Finance 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. 155 The Internet has revolutionised commerce and radically altered the manner in which commercial interaction currently takes place. 153 These statements of jurisprudence are of cardinal importance in understanding and fashioning the law of contract. 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. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). 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. Despite the general views expressed in. 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 payment mode opted for was cash on delivery. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. It may be impractical and unjust to demand that the mistaken party actually prove the knowledge of a substantial number of people who effect numerous purchases. Ltd.1 has the makings of a student's classic for several rea- Cases of fraud and misrepresentation, and undue influence, are all catered for under other existing and uncontentious equitable rules. He in effect forwarded the first plaintiffs e-mail to them. There is no merit at all in this contention. It appears that he was also in touch with the fifth plaintiff as evidenced by an e-mail sent later that morning by the fifth plaintiff to both him and the second plaintiff containing research, 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. 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. 86 In cases where the facts raised in the proposed amendments have been addressed during the evidence and submissions and, particularly, where the opposing side has also had an opportunity to address the very same points, there can hardly ever be any real prejudice. This can be before or during the trial, or after judgment or on appeal. 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. 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. 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. 54 The fourth plaintiff admits that he had entertained the idea at the material time that the price posting could have been an error. 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. This view seems to suggest that principles of equity invariably provide an equally strong but more elastic second string to the bow. The only court judgement on the theme is Chwee Kin Keong v. Digilandmall.com Pte Ltd, a judgement of the Singapore High Court. . 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. Certainty in commercial transactions should not be trifled with, as this will inevitably affect how commercial and business exchanges are respected and effected. The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from Singapore. The recipient rule is therefore more convenient and relevant in the context of both instantaneous or near instantaneous communications. Chwee Kin Keong v Digilandmall.com Pte Ltd,( [2005]SGCA 2 ) . 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. Before retiring for the night, the first plaintiff had a further discussion with the second plaintiff on how to store the laser printers they had ordered. By their own admission, they made Internet searches through various search engines to ascertain the profits they could make. What amounts to snapping up is a question of degree that will incorporate a spectrum of contextual factors: what is objectively and subjectively known, the magnitude of the transaction(s), the circumstances in which the orders are placed and whether any unusual factors are apparent. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. There were altogether 1,008 purchase orders for the laser printers placed by 784 individuals between 8 and 13January 2003. In Chwee Kin Keong v. Digilandmall.com Pte Ltd, 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. 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. 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. Failure to do so could also result in calamitous repercussions. 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. In these proceedings, it appears that the purchases made by the sixth plaintiff were not accompanied by a corresponding receipt of acceptances, as his e-mail inbox was full. The marrow of contractual relationships should be the parties intention to create a legal relationship. Notwithstanding occasional failure, most e-mails arrive sooner rather than later. At 4.15am, he sent an email to the first plaintiff, copied to the second plaintiff, with a happy emoticon following check out the prices here (see [19] supra). The fact that it may have been negligent is not a relevant factor in these proceedings. His girlfriend, Tan Cheng Peng, is also a director and shareholder of the company in which he has a stakeholding with the first and second plaintiffs. 7191 RSS High Court Expand/Collapse. Neither party raised any objections. CHWEE KIN KEONG and Others v DIGILANDMALL.COM Pte Ltd (2004) 2 SLR 594. 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). 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. 681) when the court had to decide the moment of contr act formation by post. 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. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2 Civil Procedure - Costs - Principles - Respondent failing in every aspect of defence except on issue of unilateral mistake - Trial judge awarding full costs to respondent - Whether respondent entitled to full costs The other school of thought views the approach outlined earlier with considerable scepticism. 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. 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. 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. The E-Mail Acceptance Rule. In the recent case of Chwee Kin Keong and others v Digilandmall.com Pte Ltd (2005), the Singapore Courts were provided with an opportunity to revisit the law concerning mistakes made in the formation of a contract, in particular, in the context of online contracts. It will firstly discuss the fact that such a tort Our academic writing and marking services can help you! I drew counsels attention to Halsburys Laws of Australia (Butterworths, 1992), vol6 at para 110-5550 which states: A particular class of case which illustrates unilateral mistake as to the terms intended, known to the other party, is that in which an offer which would be very advantageous to the offeree is snapped up by the offeree. The relevant text reads: WHILE surfing the Net at about 2am on Monday, MrTan Wei Teck stumbled upon an offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. chwee kin keong v digilandmall high court. The issue could be critical where third party rights are in issue as in Shogun. This is an online dating and match-making service. The recipient rule appears to be the logical default rule. The second issue was raised by me and touched upon contentions made by both parties in their written submissions. Digilandmall.com Pte Ltd. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. A number of them have very close relationships, with some of them even sharing common business interests. In that sense, it is akin to ordinary posting. The decision of the British Columbia Court of Appeal in, 25 The law of mistake was discussed in depth by McLachlinCJBC in. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. The defendant has expressly pleaded unilateral mistake. 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. Furthermore, they relied on a passage from, At the trial leave to amend particulars will as a rule be refused (, 84 It is axiomatic that a court will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the proceedings has been completed. Although a mistaken party will not often be able to discharge the onus of showing that the other party knew or must have known that he or she intended terms different from the terms of the offer or acceptance, it is not a necessary element that the party seeking to enforce the contract has actively contributed to the others mistake. 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. The reach of and potential response(s) to such an advertisement are however radically different. 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. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. 42 Mark Yeow Kinn Keong has a Bachelor of Science (Economics) degree from the University of London. Part of the training module included hands-on training with a new template for a Price Mass Upload function. 101 The applicable rules in relation to transactions over the worldwide web appear to be clearer and less controversial. He is currently a supervisor in the taxation department of an international accounting firm, Deloitte & Touche, specialising in corporate taxation services. Our conclusion is that it is impossible to reconcile Solle v Butcher with Bell v Lever Bros Ltd. If there appears to be no reasonable explanation for an absurd price discrepancy, it is axiomatic that any hasty conduct, such as the plaintiffs, in snapping up products, should be punctiliously scrutinised and dissected. The price of the laser printer, prior to 3.36pm on 8January 2003, was stipulated as $3,854 (exclusive of GST) on both the Digilandmall and HP websites (the websites), and as $3,448 on the Digiland commerce website. 67 MsToh subsequently did some research on how companies which had committed similar mistakes over the Internet handled the aftermath. This was not noticed by the company until over 4,000 printers were ordered. To assert that as a rule, leave to amend particulars will be refused, is both illogical and incorrect. 140 The defendant has however properly asserted that there was a unilateral mistake that vitiated all the contracts. 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. He claims visiting, 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. The plaintiffs orders were processed by the defendants automated system and confirmation notes were automatically despatched to the plaintiffs within a few minutes. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. Digilandmall.com Pte Ltd [2004] 2 SLR(R) 594, Rajah JC (as . The defendant also sells HP products on its own website at http://www.digiland.com (the Digilandmall website). 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). Therefore, administrative law encompasses Is the Right to Privacy Adequately Protected? 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. That is sufficient in these circumstances. Added to his own purchases of 760 units, he was effectively responsible for the purchase of 1,090 laser printers. Date of Verdicts: 12 April 2004, 13 January 2005. The elements of an offer and acceptance are, 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. Imagine the effect of this negative publicity on your future sales! 141 In so far as the sixth plaintiff is concerned, I emphasise that his knowledge and/or conduct of should be equated with that of the third plaintiff. 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. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. The price for equitable justice is uncertainty. 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. 9 The defendants assertion that Samuel Teo had neither the authority nor the intention to make any alterations to the laser printers price is now accepted by the plaintiffs. The financial consequences could be considerable. 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. He appeared to be consummately familiar with Internet practices and was forced to concede that he thought it was weird and unusual when he saw the number 55 on the relevant webpages in place of the actual product description. The object of the exercise is to determine what each party intended, or must be deemed to have intended. Scorpio: 13/01/20 01:33 as many as I can! 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 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. As for the common law on unilateral mistake, it is claimed that the acid test for its application is not satisfied. I do not accept that there were no discussions between them on the price posting being an error. This is essentially a matter of language and intention, objectively ascertained. At 4.15am, he sent an email to the first plaintiff, copied to the second plaintiff, with a happy emoticon following check out the prices here (see [19]. The defendants wanted to sell some hare skins to 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. It presents a textbook example of offer and acceptance. The Canadian and Australian cases have moved along with the eddies of unconscionability. 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. 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. There is one important exception to this principle. There must be consensus ad idem. This can result from human interphasing, machine error or a combination of such factors. The plaintiffs could not coherently explain why neither they nor their lawyers had not attempted to correct the press reports at the material juncture. hahaha means S$132, Desmond 13/01/20 01:43 even $500 is a steal. How could one seek to calculate the profit margin before finding out the true market price of the laser printer? 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. To export a reference to this article please select a referencing stye below: This selection of essays, case summaries and dissertations is of relevance to law students within the Commonwealth and for those students who are studying the Rule of Law from outside the Commonwealth . 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. Any reasonable person, given the extent of the knowledge and information the plaintiffs were armed with, would have come to a similar conclusion. He acknowledged having had conversations with the other plaintiffs about how much money we can sell the printer and how much we can make and about storage space as well as how many units we intend to buy. Abstract The decision of V.K. 2 Who is correct? COURT. In such cases, where the purchaser has readily accessible means from the very same computer screen, to ascertain through a simple search whether a mistake has taken place, the onus could be upon him to exonerate himself of imputed knowledge of the mistake. He worked in an accounting firm, Ernst and Young, for three years. 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. This is in contrast to the English position where after several decades Hartog v Colin & Shields still remains the locus classicus. 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. As such, I would strongly appeal to you to reconsider your decision. VKR a j a hJ C. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004. Transactions over websites are almost invariably instantaneous and/or interactive. But it is difficult to see how that can apply here. 72 To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. 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. When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. It has been a fertile source of academic debate, but in practice it has given rise to a handful of cases that have merely emphasised the confusion of this area of our jurisprudence. The most that the court can do in these circumstances is to refuse E [the other party, who wants the contract held void] specific performance, which lies in the discretion of the court and will probably be refused where E has been guilty of some degree of sharp practice. COOTE, B. 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. 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. 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. In these circumstances we can see no option but so to hold. I am not prepared, after full consideration, to assume that the reporters misquoted the facts. 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. *You can also browse our support articles here >. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. The fifth plaintiff was also a member of this bridge group. 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. Homestead Assets Sdn Bhd v. Contramec . In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. 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. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. She opined that situations where unilateral mistake had been considered were those involving fraud or a very high degree of misconduct. 61 The fifth plaintiff placed an order for 100 laser printers at about 3.51am. in the High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd,2 from the perspective of economics. The defendant programmed the software. 63 It is pertinent he too made web searches using the Google search engine. Mutual promises, by all accounts, on the basis of existing case law, more than amply constitute consideration. 57 Malcolm Tan is 30 years old and a practising advocate and solicitor. Singapore Court of Appeal. 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. The case of, The offer was wrongly expressed, and the defendants by their evidence, and by the correspondence, have satisfied me that the plaintiff, 116 The term snapping up was aptly coined by JamesLJ in, 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. Court reference 202 of 2003. 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. 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.
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