Do you have a 2:1 degree or higher? Transactions over websites are almost invariably instantaneous and/or interactive. She opined that situations where unilateral mistake had been considered were those involving fraud or a very high degree of misconduct. 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. 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. Slade, in a well reasoned article written not long after, 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in, Thus the premise of the equitys intrusion into the effects of the common law is that the common law rule in question is seen in the particular case to work injustice, and for some reason the common law cannot cure itself. The Postal Acceptance Rule in the Digital Age - ResearchGate The defendants argued this pricing was a unilateral mistake and that the complainants took advantage of this. Despite their familial relationship, the legal relationship between the two of them was that of agent and principal. Parties Chwee Kin Keong & Others v. Digilandmall.com Pte Ltd. Decision date 12/04/2004. Chwee Kin Keong vs Digilandmall.com A prospective purchaser is entitled to rely on the terms of the web advertisement. The knowledge that the offer is not meant according to its literal terms simply displaces the objective theory of contract. 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. Furthermore, unlike a fax or a telephone call, it is not instantaneous. He then zealously sent at about 2.58am, an e-mail to 54 persons, all of whom were friends and/or business associates. Lord Griffiths in, 87 It appeared to me that the extract from, 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 (, 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. Section11 of the ETA expressly provides that offers and acceptances may be made electronically. The defendant is therefore entitled to recover in full its taxed costs from the plaintiffs. While this case needs to be treated with some caution, as it appears to integrate concepts of law and equity, I respectfully agree with the approach in so far as it deals with deemed knowledge. Rather, in my opinion, constructive knowledge alone will suffice to invoke equitys conscience. 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 is one important exception to this principle. Desmond: 13/01/20 01:41 u want it for profit or personal use? 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. 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. reference was made by the court to "fraud or a very high degree of misconduct" before the non- mistaken party could be . It is simply inconceivable that when he entered into the purchase transaction, he did not know, or at the very least did not have a real and abiding belief that the price posting was an error. As the reports contradict portions of their present evidence, they have indirectly tried to cast doubt on the accuracy of the reports in so far as the reports referred to them. Further, the character of the mistake was such that any reasonable person similarly circumstanced as each of the plaintiffs would have had every reason to believe that a manifest error had occurred. I categorically reject their evidence in so far as it attempts to hermetically compartmentalise their knowledge and discussions. Consideration was less than executory and non-existent. Web merchants ought to ensure that they either contract out of the receipt rule or expressly insert salient terms within the contract to deal with issues such as a choice of law, jurisdiction and other essential terms relating to the passing of risk and payment. 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. 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. The case involved the sale of printers by the defendant at a price of S$66. Alarm bells would have sounded immediately. ! with its importance set at high. This was also the practice in the trade. He offered no plausible explanation for the series of orders which he placed while he was in communication with the other plaintiffs, other than stating audaciously that he had to buy a lot to sell a lot, to get a lot. He was aware that the laser printers were targeted for business use. It can however be observed that in mass mistake cases, even when there is no direct evidence as in these proceedings, the court could be prepared to pragmatically assume actual or deemed knowledge of the manifest mistake. 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. 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. Doctrine and fairness in the law of contract - Cambridge Core MrTan said: As long as we get out [sic] equitable compensation, we should be able to accept lesser terms, but thats just under consideration as well.. It was found that the plaintiffs must have known or realised that the offer did not express the true intention of the defendants. He was also involved in initiating the Channel NewsAsia report (see [78] and [79], 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. It can be noted, however, that while s15 of the ETA appears to be inclined in favour of the receipt rule, commentaries indicate that it is not intended to affect substantive law. 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. There is constant tension in our legal system to accommodate the Janus-like considerations of fairness and finality. The sender will usually receive a prompt response. 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). What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. "Unilateral Mistake at Common Law and in Equity" by Kelvin Fatt Kin LOW 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. He graduated with an accounting degree from NTU. 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. 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. This judgment text has undergone conversion so that it is mobile and web-friendly. Case Note: Singapore - CORE Having expressed my views on consideration, I should also add for good measure that, in any event, there is ample consideration. Given that he left everything in the third plaintiffs hands, his legal position is, to that extent, identical to the third plaintiffs. The defendant programmed the software. It was listed at the price of $66, when it was advertised on the official HP website for $3,854. He in effect forwarded the first plaintiffs e-mail to them. I must add that these were far from being ordinary printers for home use. 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. Similar works. Case Summary 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. It was held that the contract between the parties was void. CHWEE KIN KEONG and Others v DIGILANDMALL.COM Pte Ltd (2004) 2 SLR 594. In that sense, it is akin to ordinary posting. I note that Chitty at para5-089, fn25 sagely opines that Taylor v Johnson does not represent English law, at least, where the other party knows that a mistake has been made. This was summarily resolved. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. Lord Phillips of Worth MatraversMR observed in a withering analysis at [156], [157], [160] and [161]: Thus the premise of the equitys intrusion into the effects of the common law is that the common law rule in question is seen in the particular case to work injustice, and for some reason the common law cannot cure itself. . V K Rajah JC. Both parties displayed a considerable amount of imagination in dealing with them. 71 The sixth plaintiffs position can be dealt with very briefly. I granted leave to both parties to file applications to amend the pleadings. Judgments >> CA 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] - YouTube Section13 of the ETA deems that a message by a partys automated computer system originates from the party itself. 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. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. Singapore Court of Appeal. 50 Ow Eng Hwee, 29 years old, is another network marketing entrepreneur. 90 After leave was granted to amend the defence, each of the plaintiffs filed a further short affidavit refuting knowledge of the mistake relating to pricing. Has an agreement been reached or not? In my view this further undermines the essence of the plaintiffs case that they never contemplated that the pricing was a mistake. 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. He had left everything to his brother. Evidence was given that if phone calls were indeed placed, they would from time to time limit the number of sales. He opted to pay for all his purchases by cash on delivery. So there is a contract and therefore the defendant is liable in breach of contract. 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. 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. It is unequivocally unethical conduct tantamount to sharp practice. It appears that in Convention transactions, the receipt rule applies unless there is a contrary intention. 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. The first plaintiffs riposte, should such a situation come to pass, was to sue them lor. How come got such thing? There are persuasive arguments against extending the litmus test of unconscionability to all mistake-type situations. He is 32 years old and conducts his own network marketing business. 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. Contract Formation and Mistake in Cyberspace - the Singapore Experience 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 . 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). Prior to this he was an associate in the Intellectual Property and Technology Department of Allen & Gledhill. 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. Other Jurisdictions. 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. A contract will not be concluded unless the parties are agreed as to its material terms. 78 In a Channel NewsAsia report datelined 15January 2003, it was reported that: Two of the customers, Mark Yeow and Malcolm Tan, have already spoken to their lawyers. 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. Digilandmall.com Pte Ltd [2004] 2 SLR(R) 594, Rajah JC (as . The sixth plaintiff is precluded from asserting his ignorance. The essence is not so much in the nature of the amendment but rather in the consequences flowing from any amendment to the pleadings. The defendant has expressly pleaded unilateral mistake. 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. He appeared distinctly uncomfortable during several phases of his cross-examination and his answers on crucial points were evasive and often vague.. His evidence in relation to the level and nature of communications he had with the second and third plaintiffs on the morning in question lacked candour. There are in this connection two schools of thought. There must be consensus ad idem. (PDF) Unilateral Mistake in Contract: Five Degrees of - ResearchGate
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