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. 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. 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. So there is a contract and therefore the defendant is liable in breach of contract. They contended that the entire ICQ conversation, infused with such a jocular tone, should be disregarded. The neutral citation of the case Chwee Kin Keong and others v Digilandmall.com Pte Ltd is as follows: This citation tells us that this was the 71st case in 2004 decided in the Singapore High Court. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. 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.)]. This gives their courts a broad and elastic jurisdiction to deal with commercially inappropriate behaviour. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004] SGHC 71. 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]. Their 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. 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. 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. 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. In a, WHILE surfing the Net at about 2am on Monday, MrTan Wei Teck stumbled upon an offer, 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. While these contentions were well within the scope of the evidence adduced and their respective lines of cross-examination, they appeared to transgress their respective pleadings. be rebutted" (per Salmon LJ in Jones v. Padavatton (1969)). David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch) Dunlop v Higgins (1848) 1 HLC 381. Amendments after conclusion of submissions. Ltd.1 has the makings of a student's classic for several rea- He held that the Written Offer was accepted by the . 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 e-mails sent at 2.34am were also captioned Go load it now! They are not mechanical rules to be applied in a vacuum, devoid of a contextual setting. by the earlier decision of Chwee Kin Keong v Digilandmall.com [2005] 1 SLR(R) 502, where the Court of Appeal recognised the doctrine of unilateral mistake in equity, departing from the English position in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679; [2002] 3 WLR 1617; [2002] 4 All ER 689. 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. The most recent and authoritative pronouncement in this area (. This may be too high a price to pay in this area of the law. 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. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. The rationale for this is that a court will not sanction a contract where there is no consensus ad idem and furthermore it will not allow, as in the case of unilateral mistake, a non-mistaken party to take advantage of an error which he is or ought to be conscious of. 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. As for the common law on unilateral mistake, it is claimed that the acid test for its application is not satisfied. 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, a fortiori in the sale of information and probably services, as the same constraints as to availability and supply may not usually apply to such sales. 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. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. These statements are not to be interpreted as a clarion call to rewrite commercial agreements because of a partys unreasonable or ignoble behaviour. A court will not enforce the plaintiffs purported contracts even if they are not void. 67 MsToh subsequently did some research on how companies which had committed similar mistakes over the Internet handled the aftermath. Often the essence of good business is the use of superior knowledge. Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to temper the effect of the common law doctrine of frustration, so there is scope for legislation to give greater flexibility to our law of mistake than the common law allows. There are many different shades of sharp practice or impropriety. He in effect forwarded the first plaintiffs e-mail to them. 146 A purchaser in a case of apparent unilateral mistake, who purchases for genuine own use a product, may not always be viewed as guilty of engaging in snapping up. This was summarily resolved. This is in contrast to the English position where after several decades Hartog v Colin & Shields still remains the locus classicus. Chwee Kin Keong and others v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502; [2005] SGCA 2. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. 101 RSS Intellectual Property Office of Singapore Expand/Collapse. Nor could he satisfactorily explain why he initially made the Internet searches to ensure the offer was genuine. This could account for the substantial number of Canadian cases in this area of the law. Is this a case of poetic justice? This was also the practice in the trade. 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. . It appears that it wanted to leave no stone unturned and had therefore mounted a root and branch attack on the plaintiffs claims. Quoine was operating as a market-maker on their own platform. VKR a j a hJ C. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004. Given its global reach and ever changing technological advancements, Internet usage will pose a myriad of issues for resolution. This pricing was a mistake, which was fundamental to the contract and the complainants must have known that this absurdly low pricing was an error by the defendants. Chwee Kin K eong and others . Who bears the risk of such mistakes? 4, 1971, p. 331. Vincent. Date of Verdicts: 12 April 2004, 13 January 2005. 61 The fifth plaintiff placed an order for 100 laser printers at about 3.51am. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. 19 Later in the morning, at about 4.15am, the fourth plaintiff sent the following e-mail to the first plaintiff, copied to the second plaintiff only: Subject: Re: IMPT HP Colour LaserJet going at only $66!! He is described by his counsel in submissions as a prudent and careful person. 68 Yeow Kinn Oei is 29 years old and the brother of the third plaintiff. The web merchant, unless he qualifies his offer appropriately, by making it subject to the availability of stock or some other condition precedent, could be seen as making an offer to sell an infinite supply of goods. As such, I would strongly appeal to you to reconsider your decision. The very foundations of predictability, certainty and efficacy, underpinning contractual dealings, will be undermined if the law and/or equity expands the scope of the mistake exception with alacrity or uncertainty. Mutual promises, by all accounts, on the basis of existing case law, more than amply constitute consideration. Comments Published in English: [2004] 2 SLR 594; [2004] SGHC 71. [2005] 1 SLR(R) Chwee Kin Keong v Digilandmall Pte Ltd 521. whether constructive knowledge by a non-mistaken party of the mistake would suffice to vitiate the contract ab initio. 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. The unusual product description of 55 which the fourth plaintiff alone reluctantly acknowledged as weird and unusual would have been a red light signal that an error had occurred. In the Singapore context a similar approach has been adopted by the Court of Appeal in, 105 It is not only reasonable but right that the objective appearance of a contract should not operate in favour of a party who is aware, in the eyes of the law, of the true state of affairs when, for instance, there is real misapprehension on the part of the mistaken party and when the actual reality of the situation is starkly obvious. See now, also, The decision of V.K. 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. I hope by the time you see this email, the price is still at S$66.00 coz they might change it anytime. . CHWEE KIN KEONG and Others v DIGILANDMALL.COM Pte Ltd (2004) 2 SLR 594. They even discussed the possible scenario of the defendant not honouring the transactions. Limit orders: order to be executed only when the desired price is available. 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. The payment mode selected by the third plaintiff was cash on delivery. The same view is echoed in Halsburys Laws of Singapore vol7 (Butterworths Asia, 2000) at [80.164]. One of the few cases on electronic contract formation in Singapore was Chwee Kin Keong v Digilandmall. The following excerpt is particularly significant and compelling: 23 The subsequent exchange further clarifies that the first plaintiff was fully conscious of the potential profit element arising from the purchase of a substantial number of the laser printers. As most web merchants have automated software responses, they need to ensure that such automated responses correctly reflect their intentions from an objective perspective. 80 Upon the conclusion of submissions, I directed counsel to appear before me. 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. Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. Though he initially denied this in cross-examination, he had to accept this when confronted with his own e-mail as irrefutable evidence. 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. 18 He said he later conducted some searches using the Google search engine and ascertained that the laser printer could be sold at about US$1,300 in certain markets. Please refer to the PDF copy for a print-friendly version. 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. He placed another order for a further 150 printers at 3.14am, followed by two further orders for 300 printers each at about 3.56am and 3.59am. Soon after, the second, third and fifth plaintiffs took their claims to the media. 111 This approach appears to have been endorsed by Judith PrakashJ in Ho Seng Lee Construction Pte Ltd v Nian Chuan Construction Pte Ltd [2001] 4 SLR 407 at [84] where it was also accepted that: The test is an objective one based on what a reasonable person would have known in similar circumstances. The first plaintiffs callname in this exchange is Scorpio. I have found that the plaintiffs had at all material times knowledge of or, at the very least, a real belief that an error had been made by the defendant in the price posting. This is clearly a mistake as they could not possible be sold for an amount that in a commercial situation. 64 The fifth plaintiff was vague and tentative in many crucial aspects of his evidence. In doing so, they appear to have also conflated equitable and common law concepts. In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. 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. As with any normal contract, Internet merchants have to be cautious how they present an advertisement, since this determines whether the advertisement will be construed as an invitation to treat or a unilateral contract. This can be before or during the trial, or after judgment or on appeal. Most telling of all, I note that the first to fifth plaintiffs exhibited identical reports in each of their affidavits without any qualification whatsoever. It takes the view that there is no jurisdiction in equity to rescind a contract that is valid at common law, on the basis of mistake. In some unusual circumstances where a unilateral mistake exists, the law can find a contract on terms intended by the mistaken party. 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. Parties Chwee Kin Keong & Others v. Digilandmall.com Pte Ltd. Decision date 12/04/2004.