327. 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. The first plaintiffs riposte, should such a situation come to pass, was to sue them lor. 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. NZULR, vol. I reject this. 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. The e-mails sent at 2.34am were also captioned Go load it now! Suggested Citation: Seng, Daniel Kiat Boon, Quoine Pte Ltd v B2C2 Ltd: A Commentary (June 2020). The case of Chwee Kin Keong & Ors v Digilandmall.com Pte Ltd [2004] SGHC 71, and the decision by VK Rajah JC, has received much public attention. 101 RSS Intellectual Property Office of Singapore Expand/Collapse. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. It deals with the process rather than the substance of how to divine the rule. Thus, 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. reference was made by the court to "fraud or a very high degree of misconduct" before the non- mistaken party could be . He has incorporated an Internet business Dreamcupid in which the second plaintiff has an interest. HIGH COURT. He also participates in multi-level marketing of Bel-Air aromatherapy products. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. 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. Notwithstanding some real differences with posting, it could be argued cogently that the postal rule should apply to e-mail acceptances; in other words, that the acceptance is made the instant the offer is sent. Prejudice is to be viewed broadly to encompass any injustice and embraces both procedural and substantive notions; (d) recognising that while a costs award against the party seeking late amendments can frequently alleviate any inconvenience caused, this may not always be appropriate; (e) taking into account policy considerations that require finality in proceedings and proper time management of the courts resources and scheduling. In some unusual circumstances where a unilateral mistake exists, the law can find a contract on terms intended by the mistaken party. I found his entire evidence relating to his communication with the first and other plaintiffs unsatisfactory and in many aspects incredulous. 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. The issue could be critical where third party rights are in issue as in Shogun. 113 The English Court of Appeal in Commission for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259, a case of common mistake, imported the concept of Nelsonian knowledge and applied the framework of various categories of knowledge outlined by Peter GibsonJ in Baden v Societe Generale pour Favoriser le Developpement du Commerce et de lIndustrie en FranceSA [1993] 1 WLR 509. The third plaintiff informed him that laser printers were being sold at $66 each and that these laser printers could be sold at a much higher price about a thousand plus. Entores Ltd v Miles Far East Corp. [1955] 2 Q.B. After the defendant intimated that it would not be delivering the laser printer, he sent an e-mail excoriating it, asserting, inter alia: Myself, and other people who have been disappointed by you decision, will definitely spread word of the companys lack of honour and integrity to everyone we know and all over the internet! 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. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. 122 For now it appears that a mistaken party can have two bites at the cherry. It seems to me that he was trying to tailor his evidence to fit neatly within the legal parameters of the plaintiffs case. The question is what is capable of displacing that apparent agreement. The financial consequences could be considerable. 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. Here are some examples of case citations for other jurisdictions. 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. I even went to both the HP Web-Site as well as the DigilandMall Web-site to see if the prices were the same. This is one of the first prominent case that deals with the issue of web based contract. 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. Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502: [2005] SGCA 2 Context: This Case deals with the issue of unilateral mistake. The programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. In the light of that consideration we can see no way that Solle v Butcher can stand with Bell v Lever Bros Ltd. 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 payment mode opted for was cash on delivery. The credit card payments had not been processed. Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . In turn, the ICQ chat session involving the first plaintiff and the respective plaintiffs exchange of e-mails played a significant role in undermining their credibility and claims. That is sufficient in these circumstances. They assert that spending only $105,996 to procure laser printers with an actual market value of $6,189,524 is wholly irrelevant; they are entitled to a good bargain. As for the common law on unilateral mistake, it is claimed that the acid test for its application is not satisfied. In short, where does the justice reside? 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. 156 The plaintiffs claims are dismissed. The answer on the authorities is a mistake by one party of which the other, 111 This approach appears to have been endorsed by Judith PrakashJ in, 114 For good measure, I should allude that the plaintiffs in their written submissions concede that in order to establish that mistake is operative at common law, the defendant has to show in this instant case that the plaintiffs each had, 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. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no 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. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. The e-mails had all the characteristics of an unequivocal acceptance. The present article analyses the many important issues that are raised by what is probably the first case on Internet mistake - the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594. The contract stands according to the natural meaning of the words used. 91 There is no real conundrum as to whether contractual principles apply to Internet contracts. Certain Internet service providers provide the technology to inform a sender that a message has not been properly routed. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. 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, 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. Slade, in a well reasoned article written not long after Solle v Butcher was decided, asserted: In general, it is submitted that there are no cases which support the proposition that in cases of unilateral mistake, V [the enforcing party] may obtain this relief where the contract is not void at law and there has been no misrepresentation. 54 The fourth plaintiff admits that he had entertained the idea at the material time that the price posting could have been an error. Where common mistake is pleaded, the presence of agreement is admitted. 12 The plaintiffs both collectively and individually maintained adamantly that while they thought that the price of $66 appeared to be a good deal they did not think that the website prices had been mistakenly placed or inserted. The e-mail was given a high importance priority and captioned go load it now!!. No cash had been collected. Yet in other aspects, he could recollect, with crystal clear precision and clarity, details of what had transpired. 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. While the first plaintiff was the source of the information concerning the price posting, the second plaintiff actively communicated with all of the plaintiffs (save the sixth plaintiff), throughout the material period. 47 Not content with making his own purchases, he woke up his brother and transacted 330 units on his behalf. With reference to the judgement, the case explores pricing mistakes by online stores. Nor should parties regard pleadings as assuming an amoeba-like nature, susceptible to constant reshaping. 65 He was particularly circumspect in recounting his communications with the second plaintiff. He subsequently sent the web link to the Epinions website to the first and second plaintiffs. 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. 34 He also visited the Digilandmall website to familiarise himself with their standard terms and conditions. A number of them have very close relationships, with some of them even sharing common business interests. 132 It can be seen from this brief excursus into the law of mistake that this is an abstruse area. ! with its importance set at high. The plaintiffs orders were processed by the defendants automated system and confirmation notes were automatically despatched to the plaintiffs within a few minutes. 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. From time to time they communicate with each other, 4 The defendant is a company that sells information technology (IT) related products over the Internet to consumers. This could account for the substantial number of Canadian cases in this area of the law. The most recent and authoritative pronouncement in this area (per Lord Phillips of Worth Matravers in Shogun Finance Ltd v Hudson [2003] 3 WLR 1371 at [123]) states: 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). Both parties displayed a considerable amount of imagination in dealing with them. 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. The preface I do not know in no way detracts from this; the e-mail being addressed to a large group of 54 persons, the first plaintiff would simply not have wanted to commit himself by saying I know. , In mutual mistake, the parties misunderstand each other and are at cross-purposes. Not all one-sided transactions or bargains are improper. 681) when the court had to decide the moment of contr act formation by post. Such conduct is akin to that of an unscrupulous commercial predator seeking to take advantage of an error by an unsuspecting prey by pouncing upon it before the latter has an opportunity to react or raise a shield of defence. 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 . 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. They contended that the entire ICQ conversation, infused with such a jocular tone, should be disregarded. The shopping cart website page carried the insertion call to enquire under the heading Availability of product. Failure to do so could also result in calamitous repercussions. He graduated with an accounting degree from NTU. Where common mistake is pleaded, the presence of agreement is admitted. Counsels approach is flawed. 20 Annexed to this e-mail was the first plaintiffs earlier mass e-mail. 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. The effect of Solle v Butcher [1950] 1 KB 671 is not to supplement or mitigate the common law: it is to say that Bell v Lever Bros Ltd was wrongly decided. Users may find that it may not be as forgiving as more traditional methods of communications. 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 conducted the searches to ascertain what the laser printers true price was. The fact that it may have been negligent is not a relevant factor in these proceedings. 101 The applicable rules in relation to transactions over the worldwide web appear to be clearer and less controversial. 30th Sep 2021 Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004] SGHC 71. Given his professional and business background, he must have realised that the $66 price posting on the HP website was an error. There are persuasive arguments against extending the litmus test of unconscionability to all mistake-type situations. But it is difficult to see how that can apply here. 108 Chitty on Contracts (28th Ed, 1999) vol1 observes at para5-035: It is not clear whether for the mistake to be operative it must actually be known to the other party, or whether it is enough that it ought to have been apparent to any reasonable man. 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. After the second plaintiff read out some of the terms and conditions he had found, the fifth plaintiff told him that the contract was binding upon a successful purchase order being received. Free resources to assist you with your legal studies! He somewhat muddied the authority of his observations by apparently accepting in Gallie v Lee [1969] 2 Ch 17 at 33 (affirmed on appeal in Saunders v Anglia Building Society [1971] AC 1004) that in Cundy v Lindsay there was no contract at all. 28 In any event, the first plaintiffs commercial background and business experience alone would have amply alerted him to the likelihood of the pricing being a mistake, even without his conversation with Desmond. Scorpio: 13/01/20 01:17 what hp online?? Abstract The decision of V.K. 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. 118 The Canadian courts have been the most active common law courts explicating and developing this area of the law. In doing so, they appear to have also conflated equitable and common law concepts. 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. 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). 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 . They proceeded to file their amendments to the statement of claim as if leave had already been given. The other knows, or must be taken to know, of his mistake. 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. 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. The price for equitable justice is uncertainty. 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. 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. David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch) Dunlop v Higgins (1848) 1 HLC 381. He admitted in cross-examination to being the lawyer for this group of people when they had questions like these in the present proceedings. A court will not enforce the plaintiffs purported contracts even if they are not void. The contract was held to be void because there was no consensus on the terms. 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. Caveat emptor remains a cornerstone of the law of contract and business relationships. 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. 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. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. This was summarily resolved. There is no merit at all in this contention. Ltd.1 has the makings of a student's classic for several reasons: it presents a textbook . Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. 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. Case Summary 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. Chwee Kin Keong vs Digilandmall.com - Free download as Powerpoint Presentation (.ppt / .pptx), PDF File (.pdf), Text File (.txt) or view presentation slides online. VKR a j a hJ C. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004. Our conclusion is that it is impossible to reconcile Solle v Butcher with Bell v Lever Bros Ltd. 61 The fifth plaintiff placed an order for 100 laser printers at about 3.51am. 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. Merchants may find their contracts formed in foreign jurisdictions and therefore subject to foreign laws. 45 The most telling aspect of the third plaintiffs evidence is his admission that he made Internet searches relating to the pricing of the laser printer, immediately after he was contacted by the first plaintiff. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. The initial order for 30 laser printers was placed at round 3.45am while the second order for 300 units was placed at around 3.53am.

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