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 332 149 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. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. 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. The contract was held to be void because there was no consensus on the terms. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . 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. This is a matter perhaps best left to law reform rather than to incremental judge-made law which may sow the seeds of confusion and harvest the returns of uncertainty. , In unilateral mistake, only one of the parties is mistaken. The sender will usually receive a prompt response. Articles 11 (1) Country Singapore. 125 The principal source of this view has been Lord DenningMR. It would be illogical to have different approaches for different product sales over the Internet. Chwee Kin K eong and others . When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. Basic principles of contract law continue to prevail in contracts made on the Internet. Desmond: 13/01/20 01:44 if they dont honor it Scorpio: 13/01/20 01:45 sell me one lah name your price ;-) sue them lor , Desmond: 13/01/20 01:45 I think they will give vouchers or special deals. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. At the very least, it has been forcefully asserted that even when a mistake does not result in voiding a contract through the application of common law principles, there remains an independent doctrine of mistake founded in equity which justifies judicial intervention. Olley v Marlborough Court [1949] 1 KB 532 Omnium D'Enterprises v . They are not entitled to the costs of the subsequent brief hearing, for reasons I now deal with summarily. 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. 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. 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. COOTE, B. 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. 327. 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. 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. 107 As the law now stands, mistakes that are not fundamental or which do not relate to an essential term do not vitiate consent. 122 For now it appears that a mistaken party can have two bites at the cherry. After all, what would he do with 100 obsolete commercial laser printers? 1.47K subscribers Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] Facts The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from. - See also Balfour v. Balfour (1919). [emphasis added]. It was the defendants computer system. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. A number of them have very close relationships, with some of them even sharing common business interests. 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. Reference this [emphasis added]. [emphasis added]. 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. 26 It is clear from the priority status accorded to the e-mail that the first plaintiff was sharing his knowledge of a good deal. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2 Civil Procedure Costs , Civil Procedure Pleadings , Contract Mistake Decision Date: 13 Jan 2005 . Indeed this appears to be the underlying rationale for the unique legal characteristics attributed to an invitation to treat; see. 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. This, in a nutshell, is the issue at the heart of these proceedings. 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. He graduated from NTU as a bachelor of business studies, specialising in financial analysis. He claimed he wanted to find out how much profit he could make. The programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. 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. Often the essence of good business is the use of superior knowledge. 72 To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. There is constant tension in our legal system to accommodate the Janus-like considerations of fairness and finality. The reason for this inconsistent conduct surfaced later. This constituted more than a quarter of the total number of laser printers ordered. The purpose of the amendments was merely to regularise the pleadings and indeed they went no further than to summarise evidence and submissions that had already been raised. 75 Each of the automated confirmatory e-mail responses carried under Availability of product the notation call to enquire. Landmark decision on unilateral mistake of fact in respect of the price of product listed on an online mall and the purchases made thereon . 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). 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. This gives their courts a broad and elastic jurisdiction to deal with commercially inappropriate behaviour. 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. 118 The Canadian courts have been the most active common law courts explicating and developing this area of the law. The second issue was raised by me and touched upon contentions made by both parties in their written submissions. This e-mail was sent only after the first plaintiff had made his own Internet searches on the pricing of the laser printer. This new template was designed to facilitate instantaneous price changes allowing them to be simultaneously reflected in the relevant Internet web pages. 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. 1 In the early hours of the morning of 13January 2003, six friends, the plaintiffs in this case, placed orders over the Internet for 1,606 sophisticated Hewlett Packard commercial laser printers (the laser printer(s)). Needless to say, he could not satisfactorily explain why his previous solicitors had formed such a view when preparing his affidavit and why he had affirmed the same. This contention is wholly untenable. 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. 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. 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 later the amendment, the greater the adverse consequences. 103 The amalgam of factors a court will have to consider in risk allocation ought to include: (a) the need to observe the principle of upholding rather than destroying contracts, (b) the need to facilitate the transacting of electronic commerce, and. Transactions over websites are almost invariably instantaneous and/or interactive. Arrival can also be immaterial unless a recipient accesses the e-mail, but in this respect e-mail does not really differ from mail that has to be opened. It became apparent that the plaintiffs misplaced reliance on the extract earlier cited probably also explained their singularly odd conduct in applying for amendments, only to withdraw their application later in attempting to deny the defendant an opportunity to amend its pleadings. In addition, Tan Cheng Peng, the girlfriend and business associate of the third plaintiff, filed an affidavit detailing her communications with him. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. Furthermore, unlike a fax or a telephone call, it is not instantaneous. Free resources to assist you with your legal studies! The fifth plaintiff was also a member of this bridge group. 74 Under product description on each webpage, instead of the actual description of the laser printer which in this case should have been HP9660A Color LaserJet 4600, only the numerals 55 appeared: this was the result of Samuel Teos earlier inadvertent input. The first plaintiffs riposte, should such a situation come to pass, was to sue them lor. A court will not enforce the plaintiffs purported contracts even if they are not void. 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. Not all one-sided transactions or bargains are improper. Philip Fong Yeng Fatt and Doris Chia Ming Lai (Harry Elias Partnership) for defendant, Chwee Kin Keong; Tan Wei Teck; Yeow Kinn Keong Mark; Ow Eng Hwee; Tan Chun Chuen Malcolm; Yeow Kinn Oei The issue in this case was whether the pricing was a mistake and if the contract would be fulfilled. 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. *You can also browse our support articles here >. The first and fifth plaintiffs ordered exactly a hundred laser printers each. Abstract The decision of V.K. Scorpio: 13/01/20 01:17 what hp online?? In Chwee Kin Keong and ors v Digilandmall.com Pte Ltd, 5 VK Rajah JC, as His Honour then was, decided against the rule-based approach in Moss v Malings. The credit card payments had not been processed. Again he attempted to minimise the impact of these observations by saying his subsequent searches erased all such doubts. It is important not to force into a Procrustean bed principles that have to be modified or discarded when considering novel aspects of the Internet. 121 While my views here are not central to my decision, the plaintiffs have adverted to this relationship in a misguided attempt to derail the defence on an arid pleading technicality. 57 Malcolm Tan is 30 years old and a practising advocate and solicitor. This is much closer to the truth than the picture he has tried to paint in these proceedings. 34 He also visited the Digilandmall website to familiarise himself with their standard terms and conditions. In some unusual circumstances where a unilateral mistake exists, the law can find a contract on terms intended by the mistaken party. 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 As such, I would strongly appeal to you to reconsider your decision. The most recent and authoritative pronouncement in this area (. 37 The second plaintiff was insistent in his evidence that there was no communication from the first plaintiff alerting him to the likely existence of the mistake; he contends the first plaintiff merely apprised him of a good deal and sent him the weblink to the HP website. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004 . Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 Chapelton v Barry UDC [1940] 1 KB 532 Chaplin v Hicks [1911] 2 KB 786 Chappell v Nestl [1960] AC 87 Chwee Kin Keong v Digilandmall.com [2006] 1 LRC 37 CIBC Mortgages v Pitt [1994] 1 AC 200 - Undue . 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.)]. 21 The first plaintiff must have realised at the outset that he would have to explain with a certain measure of credibility the purport and significance of all his Internet communications between 1.00am and 3.00am on 13January 2003. The defendants argued this pricing was a unilateral mistake and that the complainants took advantage of this. 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. 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. Doctrines and Institutions of Responsible Government. 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. The law ought to take a practical approach in dealing with such cases if it appears that by exercising reasonable care the true facts ought to be known. David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch) Dunlop v Higgins (1848) 1 HLC 381. I cannot accept that. The High Court of Australia in Taylor v Johnson purportedly relied on Solle v Butcher, Bell v Lever Brothers, Limited [1932] AC 161, McRae v Commonwealth Disposals Commission (1951) 84CLR 377, all cases of common mistake, to suggest that in unilateral mistake a contracting party cannot assert, by relying on his own mistake, that a contract is void, notwithstanding the issue is fundamental or known to the other side. 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. The appellants featured prominently because of the size of their orders. It stands to reason that if a party shuts its eyes to the obvious, the party is being neither honest nor reasonable, and ought to be affixed with knowledge. 2. Imagine the effect of this negative publicity on your future sales! The defendant has expressly pleaded unilateral mistake. 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.