52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. It is set in the context of internet contracting. 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. Unilateral mistake in contracts - L'Avocat Law Chwee Kin Keong decision - Chwee Kin Keong and Others v Digilandmall The jurisdiction asserted in the former case has not developed. Case Note: Singapore - CORE Notwithstanding occasional failure, most e-mails arrive sooner rather than later. Rules and case law pertaining to amendments are premised upon achieving even-handedness in the context of an adversarial system by: (a) ensuring that the parties apprise each other and the court of the essential facts that they intend to rely on in addressing the issues in controversy or dispute; (b) requiring that an amendment should be attended to in the usual course of events, at an early stage of the proceedings, to ensure that no surprise or prejudice is inflicted on or caused to opposing parties; (c) requiring careful consideration whether any amendments sought at a late stage of the proceedings will cause any prejudice to the opposing party. 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. Claiming he was in a light-hearted kind of mood during his ICQ (acronym for I-Seek-You) conversation with Desmond, he insisted that this conversation should be taken neither seriously nor literally. He was also a partner in what is described as a printing business. 64 The fifth plaintiff was vague and tentative in many crucial aspects of his evidence. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd, Whether amendment of particulars of pleadings at conclusion of submissions allowed, Facts raised in proposed amendments addressed during trial and submissions, Whether promise by buyer to pay for goods, in exchange for delivery of goods, constituted sufficient consideration, Electronic Transactions Act (Cap 88, 1999 Rev Ed), Whether automated e-mail responses from seller amounted to acceptance of buyer's offer, Seller's unilateral mistake as to price of goods posted on website, Whether online buyer entitled to enforce contract against seller, 3 All six plaintiffs are graduates, conversant with the usage of the Internet and its practices and endowed with more than an adequate understanding of business and commercial practices. The e-mails had all the characteristics of an unequivocal acceptance. 7 At about 3.36pm, Samuel Teo, an employee of DIL, inadvertently uploaded the contents of the training template onto the Digiland commerce website operated by DIL, in place of the test website allocated for the training. Users may find that it may not be as forgiving as more traditional methods of communications. Ltd. Yeo Tiong Min* I. 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. Any reasonable person, given the extent of the knowledge and information the plaintiffs were armed with, would have come to a similar conclusion. 104 The creases over the theoretical approach to adopt in determining the existence of contracts have for some time now been decisively ironed out in favour of the objective theory. 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. Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. 133 It is however clear that the law should not take cognisance of bad bargains and misapprehension that do not affect a fundamental or essential aspect of a contractual relationship. The amounts ordered and the hurried and hasty manner in which the orders were executed are of cardinal importance. 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. 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. You may find the status of your order by calling us at (phone number given) Special instructions: Please call to advise delivery date and time. The 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. PDF Contract Formation and Mistake in Cyberspace - the Singapore Experience 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. Digilandmall.com Pte Ltd. 14 The first, second and fourth plaintiffs became acquainted with each other when they studied at the Nanyang Technological University (NTU). When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. 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. PDF CISG-online | CISG-online.org Different protocols may result in messages arriving in an incomprehensible form. Singapore Comparative Law Review 2019 (SCLR 2019) - Issuu His communications with the fifth plaintiff, a lawyer, on the efficacy of the terms and conditions also lead to the ineluctable conclusion that he harboured anxieties whether this astoundingly good deal would be honoured when the error was discovered. 42 Mark Yeow Kinn Keong has a Bachelor of Science (Economics) degree from the University of London. He has incorporated an Internet business Dreamcupid in which the second plaintiff has an interest. 20 Annexed to this e-mail was the first plaintiffs earlier mass e-mail. In light of these general observations, I now address the law on unilateral mistake. (c) the need to reach commercially sensible solutions while respecting traditional principles applicable to instances of genuine error or mistake. 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. 80 Upon the conclusion of submissions, I directed counsel to appear before me. 3. Digilandmall.com Pte Ltd [2004] 2 SLR(R) 594, Rajah JC (as . June Proctor, 1997, p. 13. This price was much lower than the actual retail price, and had been posted on the defendant's website by mistake. 31 He admitted receiving a call from the first plaintiff at about 2.00am but claimed the first plaintiff merely apprised him of a good deal. The leading Canadian decision in this area is the case of McMaster University v Wilchar Construction Ltd (1971) 22DLR(3d) 9 which, incidentally, was cited with approval by the Australian High Court in Taylor v Johnson. [2005] 1 SLR(R) 0502 Chwee Kin Keong and others v Digilandmall.com Pte 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. 36 The second plaintiff was the key person and pivotal in the entire chain of events. Section13 of the ETA deems that a message by a partys automated computer system originates from the party itself. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. He claimed that when he could not find the identical model on the US HP website he had assumed initially that the laser printer might be obsolete and was therefore being off-loaded cheaply at $66. He also called the first plaintiff to see if the latter had managed to successfully complete his purchase. 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. 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. Date of Verdicts: 12 April 2004, 13 January 2005. The case of Hartog v Colin & Shields [1939] 3All ER 566 is incontrovertibly the leading authority in this area. 77 Soon after the defendant informed the plaintiffs that they did not intend to deliver the laser printers, the plaintiffs took their claims to the press. 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. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. 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. The terms of the offer are clear and unambiguous and the offeree accepts the offer according to its true sense, but it must have been obvious (and known by the offeree) that the offeror did not intend to make an offer in those terms. 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. Date of Verdicts: 12 April 2004, 13 January 2005. 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 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. 152 This view has also found support in the Singapore context. Given its global reach and ever changing technological advancements, Internet usage will pose a myriad of issues for resolution. In any event, it does not appear that she disclosed the whole truth of what she knew. 94 Historically, the common law has recognised an anomaly in the contractual features pertaining to a display of goods for sale. In submissions, his counsel attempted to play down the significance of both this conversation as well as the mass e-mail. 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. The defendant also sells HP products on its own website at http://www.digiland.com (the Digilandmall website). Their conduct in pursuing their claims cannot by any stretch of the imagination be characterised as having the slightest colour of being legitimate regardless of whether the subjective or objective theories are applied and whether common law or equity is applied in adjudicating this matter. 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. There must be consensus ad idem. In addition, Tan Cheng Peng, the girlfriend and business associate of the third plaintiff, filed an affidavit detailing her communications with him. 122 For now it appears that a mistaken party can have two bites at the cherry. [The Myth of Mistake in the English Law of Contract (1954) 70LQR 385 at 396]. They contended that the entire ICQ conversation, infused with such a jocular tone, should be disregarded. 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. 75 Each of the automated confirmatory e-mail responses carried under Availability of product the notation call to enquire. The fact that the acceptance was automatically generated by a computer software cannot in any manner exonerate the defendant from responsibility. In other words, he really wanted to ascertain the true price of the laser printer. 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. He is currently a supervisor in the taxation department of an international accounting firm, Deloitte & Touche, specialising in corporate taxation services. When notified and satisfied that this transaction was successful as well, he placed a final order at 4.21am for ten laser printers on the HP website, charging this to his credit card. After further sms exchanges, the second plaintiff contacted the fifth plaintiff on his mobile phone, urging him to return home to access the e-mail message he had just sent. Having noted all this, I am nevertheless inclined towards the views expressed in the, 131 In a number of cases, including the present, it may not really matter which view is preferred. The contract stands according to the natural meaning of the words used. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. 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. Sometimes this is made explicit by judges; more often it is the implied basis of the courts decision. , In mutual mistake, the parties misunderstand each other and are at cross-purposes. 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. Chwee Kin Keong and Others v Pte Ltd PDF fileChwee Kin 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. Hence the first plaintiffs cryptically worded but highly significant mass e-mail where he adverted to the fact that he did not know if the defendant would honour the contracts but in any event wished all the recipients good luck. 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. Desmond: 13/01/20 01:25 I think one of the wrong posted price, Scorpio: 13/01/20 01:25 damn dont tell me they realised their error already, Scorpio: 13/01/20 01:32 shiok can make a quick profit by selling them cheap shd buy more. 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. This is an area that needs to be rationalised in a coherent and structured manner. com Pte Ltd30 that was primarily about unilateral mistake. Imagine the effect of this negative publicity on your future sales! They have a common interest in bridge and this helped to cement their friendship. (See for example the approach in, 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. HIGH COURT. 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. 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. 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. Evidence was given that if phone calls were indeed placed, they would from time to time limit the number of sales. Theoretically the supply of information is limitless. 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. Chwee Kin Keong v Digilandmall.com Pte Ltd | India Contract Law 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. The court found that parties when . 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679, a case of common mistake. 11 The single most controversial issue in these proceedings is the knowledge possessed and/or belief entertained by each of the plaintiffs when they entered into each of the transactions for the purchase of the laser printers. 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. Scorpio: 13/01/20 01:33 as many as I can! This, by an uncanny coincidence, was the same person whom he had intended to consult in the resale of the laser printers a topic that he had discussed with the second plaintiff earlier that morning. The unconstrained exchange that followed between the two is both revealing and compelling. First, it is clear that the line of Australian and Canadian cases have broadened their equitable jurisdiction on the strength of dicta attributable principally to Lord Denning. 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 They were clearly anxious to place their orders before the defendant took steps to correct the error. Vincent. 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. 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. 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! The marrow of contractual relationships should be the parties intention to create a legal relationship. The defendants argued this pricing was a unilateral mistake and that the complainants took advantage of this. 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. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71 Suit No: Suit 202/2003/E Decision Date: 12 Apr 2004 Court: High Court Coram: V K Rajah JC Counsel: Tan Sok Ling, Malcolm Tan and Mohan Das Vijayaratnam (Tan S L and Partners) for plaintiffs, Philip Fong Yeng Fatt and Doris Chia Ming Lai (Harry Elias Computer glitches can cause transmission failures, garbled information or even change the nature of the information transmitted. The law may not imply a condition precedent as to the availability of stock simply to bail out an Internet merchant from a bad bargain, 104 The creases over the theoretical approach to adopt in determining the existence of contracts have for some time now been decisively ironed out in favour of the objective theory. These considerations take precedence over the culpability associated with causing the mistake. 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. 10 News of the rather extraordinary laser printer pricing began to spread like wildfire within the local Internet community. 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 Despite the general views expressed in. 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. clout_case_500 - UNCITRAL Solicita tu prueba. The affidavits did not add anything new. Document Citado por Relacionados. Suggested Citation: Seng, Daniel Kiat Boon, Quoine Pte Ltd v B2C2 Ltd: A Commentary (June 2020). 154 Interestingly, of the 784 persons who placed 1,008 orders for 4,086 laser printers, only these six plaintiffs have attempted to enforce their purported contractual rights. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . The CISG has currently been adopted by 95 Contracting States world-wide. In Canada, the latter suffices. It argues that the decision is both fair and economically grounded, and proposes an alternative view to that offered by classical contract law - one that sees fairness intertwined 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. Has an agreement been reached or not? The decision of the British Columbia Court of Appeal in 25659 BC Ltd v 456795 BC Ltd (1999) 171DLR(4th) 470 at [25] to [26], is instructive: 25 The law of mistake was discussed in depth by McLachlinCJBC in First City Capital Ltd v BC Building Corp (1989), 43BLR 29 (SC). Alarm bells would have sounded immediately. The elements of an offer and acceptance are ex facie satisfied in every transaction asserted in the plaintiffs claims. Loose language may result in inadvertently establishing contractual liability to a much wider range of purchasers than resources permit. Again he attempted to minimise the impact of these observations by saying his subsequent searches erased all such doubts. High Court Suit No 202 of 2003. Quite apart from this singularly precise timing, his exchange with Ms Toh is noteworthy for the following reason: when he told her about the various concluded purchases of the laser printers, she immediately thought it was a mistake and that HP would not honour the contracts. PDF Unilateral Mistake in Contract: Five Degrees of Fusion of Common Lawand
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