This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . Where either mutual or unilateral mistake is pleaded, the very existence of agreement is denied. 36 The second plaintiff was the key person and pivotal in the entire chain of events. E-mails are processed through servers, routers and Internet service providers. Chwee Kin Keong vs Digilandmall.com Why? 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. In doing so, they appear to have also conflated equitable and common law concepts. The e-mail was given a high importance priority and captioned go load it now!!. There is often, but not inexorably, a co-relationship between the timing when the amendment is sought and the adverse consequences for the other party. Cory had chosen this mode of communication; therefore he Typical transactions are usually but not invariably characterised by (a)indecent alacrity; and (b)behaviour that any fair-minded commercial person similarly circumstanced would regard as a patent affront to commercial fairplay or morality. 107 As the law now stands, mistakes that are not fundamental or which do not relate to an essential term do not vitiate consent. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. The fourth plaintiff duly accessed the e-mail the second plaintiff had sent him pursuant to their conversation. 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. Unilateral Mistake at . While this is the general principle for shop displays, it is open to a merchant to offer by way of an advertisement the mechanics of a unilateral or bilateral contract. The issue could be critical where third party rights are in issue as in Shogun. Before retiring for the night, the first plaintiff had a further discussion with the second plaintiff on how to store the laser printers they had ordered. Keywords Contract Online Store Mistake Pricing Mistake Citation 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. Prior to this he was an associate in the Intellectual Property and Technology Department of Allen & Gledhill. It is unequivocally unethical conduct tantamount to sharp practice. 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. He opted to pay for all his purchases by cash on delivery. Court reference 202 of 2003. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. In these circumstances we can see no option but so to hold. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. 101 RSS Intellectual Property Office of Singapore Expand/Collapse. It appears to suggest that even if an offer is snapped up, the contract is not void. From time to time they communicate with each other via the Internet and the short messaging system (sms). 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). In his initial affidavit he admitted wondering whether the price was a mistake after his first order was placed. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. Plaintiffs counsel indicated that they wanted to further particularise the sixth plaintiffs purchase orders. 30 Tan Wei Teck is 30 years old. No modern authority was cited to me suggesting an intended commercial transaction of this nature could ever fail for want of consideration. CHWEE KIN KEONG v DIGILANDMALL.COM Pte Ltd (2005) SGCA 2. 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. Article24 of the Convention states: For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention reaches the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence. He is described by his counsel in submissions as a prudent and careful person. The defendants argued this pricing was a unilateral mistake and that the complainants took advantage of this. In the final stage of the process, after the payment mode was indicated, each of the plaintiffs was notified successful transaction your order and payment transaction has been processed. 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. Where common mistake is pleaded, the presence of agreement is admitted. The plaintiffs refute that the error exonerates the defendant; they insist that a concluded contract is sacrosanct and must be honoured. The appellants featured prominently because of the size of their orders. Not all one-sided transactions or bargains are improper. Homestead Assets Sdn Bhd v. Contramec . There were no such discussions with potential buyers. The first plaintiffs riposte, should such a situation come to pass, was to sue them lor. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. [2005] 1 SLR (R) Chwee Kin Keong v Digilandmall.com Pte Ltd 507 printers. When considering the appropriate rule to apply, it stands to reason that as between sender and receiver, the party who selects the means of communication should bear the consequences of any unexpected events. This is an area that needs to be rationalised in a coherent and structured manner. 38 The second plaintiff came across as intelligent and resourceful. 116 The term snapping up was aptly coined by JamesLJ in Tamplin v James (1880) 15ChD 215 at 221. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract, 26 I respectfully agree with the reasoning of ShawJ in. High Court and Court of Appeal, recently, in a number of case . This constituted more than a quarter of the total number of laser printers ordered. This was borne out by the case of Chwee Kin Keong and Others v. Digilandmall.com Pte Ltd [2004] SGHC 71 where an autogenerated email with "Successful Purchase Confirmation" in its subject . In light of these general observations, I now address the law on unilateral mistake. The first plaintiff introduced him to the other plaintiffs. He claims visiting, 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. He has incorporated an Internet business Dreamcupid in which the second plaintiff has an interest. Desmond intimated that the defendant would give vouchers or special deals as a matter of equitable compensation should it not honour the purchase orders. Certainty in commercial transactions should not be trifled with, as this will inevitably affect how commercial and business exchanges are respected and effected. The brief will discuss whether a tort of invasion of privacy should be developed by the courts. The plaintiffs orders were processed by the defendants automated system and confirmation notes were automatically despatched to the plaintiffs within a few minutes. The fifth plaintiff, even if he had not been alerted by the second plaintiff, would have instinctively appreciated the existence of a manifest error without any prompting whatsoever. in the High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd,2 from the perspective of economics. 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. 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. Chwee Kin K eong and others . Mistakes are usually synonymous with the existence of carelessness on the part of the mistaken party. 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 . In New Zealand, the legislature enacted the Contractual Mistake Act 1977. The marrow of contractual relationships should be the parties intention to create a legal relationship. When pressed as to whether he visited other websites, he said he could not confirm that one way or the other. 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. It is therefore incumbent on the web merchant to protect himself, as he has both the means to do so and knowledge relating to the availability of any product that is being marketed. It was only then that the defendant promptly took steps to remove all references to the laser printer from all three websites. He claims visiting, inter alia, the Epinions and Hardwarezone websites, and though it appears that there was at the material time a discussion thread on the error on the Hardwarezone website, the fourth plaintiff denied having seen this. His counsel contends that the idea the price was a mistake never arose in the second plaintiffs mind; he was preoccupied with thinking about the profit potential of the laser printers. The same view is echoed in Halsburys Laws of Singapore vol7 (Butterworths Asia, 2000) at [80.164]. 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. Promotions would be indicated by a P inside a yellow circle next to the product in question. This final mass e-mail only reinforces my view that the first plaintiff consistently and continuously entertained the view that the price posting on the HP website was a mistake. 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. 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 It is axiomatic that normal contractual principles apply but the contractual permutations will obviously be sometimes more complex and spread over a greater magnitude of transactions. 156 The plaintiffs claims are dismissed. The web page entitled checkout order confirmation had a notation stating the earliest date on which we can deliver all the products to you is based on the longest estimated time of stock availability plus the delivery lead time. Consideration was less than executory and non-existent. Though he initially denied this in cross-examination, he had to accept this when confronted with his own e-mail as irrefutable evidence. 138 Effectively, the defendant was attempting in this contention to assert that it could have its cake and eat it as well. 9 The defendants assertion that Samuel Teo had neither the authority nor the intention to make any alterations to the laser printers price is now accepted by the plaintiffs. Indeed this appears to be the underlying rationale for the unique legal characteristics attributed to an invitation to treat; see Grainger & Son v Gough [1896] AC 325 at 333334, Esso Petroleum Ltd v Commissioners of Customs & Excise [1976] 1All ER 117 at 126. 134 It is not really in issue that contracts can be effectively concluded over the Internet and that programmed computers sending out automated responses can bind the sender. Desmond: 13/01/20 01:24 just ordered 3 colour lazer printer for S$66.00 each. The price of the laser printer, prior to 3.36pm on 8January 2003, was stipulated as $3,854 (exclusive of GST) on both the Digilandmall and HP websites (the websites), and as $3,448 on the Digiland commerce website. 58 The fifth plaintiff was first informed by the second plaintiff at about 2.30am about cheap laser printers being available for purchase. 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. The jurisdiction asserted in the former case has not developed. This is an online dating and match-making service. Indeed he had conduct of significant phases of these proceedings on behalf of the plaintiffs. 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. This was not noticed by the company until over 4,000 printers were ordered. He received this information through an sms message. All previous discussions and negotiations between the parties proceeded on the basis of the price being fixed at so much per piece. 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. MrYeow said: After we ordered, the very next day, some of us have even gone up to talk to buyers in the market about the units. Given that he left everything in the third plaintiffs hands, his legal position is, to that extent, identical to the third plaintiffs. 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. 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. Our conclusion is that it is impossible to reconcile Solle v Butcher with Bell v Lever Bros Ltd. Both parties displayed a considerable amount of imagination in dealing with them. I must add that I did not really think this was necessary and subsequent events confirmed my perception. This was also the practice in the trade. 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. Cases of fraud and misrepresentation, and undue influence, are all catered for under other existing and uncontentious equitable rules. 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. This case is a paradigm example of an error on the human side. 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. In a Straits Times report dated 15January 2003 captioned $66 printer error angry customers seek lawyers help, it was reported that the second plaintiff, described as a network marketer had on 13January at about 2.00am stumbled upon a offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. *You can also browse our support articles here >. Administrative Law in Common Law Countries. 106 In the Singapore context, the first port of call when confronted with issues of contract law is inevitably Professor Andrew Phangs treatise on Cheshire, Fifoot and Furmstons Law of Contract (2nd Singapore and Malaysian Ed, 1998). 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. 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: It is not necessary to prove actual knowledge on the part of the non-mistaken party in order to ground relief, as, In summary therefore, the equitable jurisdiction of the Courts to relieve against mistake in contract comprehends situations where one party, who knows or ought to know of anothers mistake in a fundamental term, remains silent and snaps at the offer, seeking to take advantage of the others mistake. 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. It cannot also be seriously argued that there was no intention to enter into a legal relationship. The rules of offer and acceptance are satisfied and the parties are of one mind. The other school of thought views the approach outlined earlier with considerable scepticism. So there is a contract and therefore the defendant is liable in breach of contract. The later the amendment, the greater the adverse consequences. 46 He was therefore aware, even before he made his first purchase, that the actual price of the laser printer was in the region of US$2,000. The issue could be critical where third party rights are in issue as in. The reach of and potential response(s) to such an advertisement are however radically different. Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . They have taken into account both the English and Australian authorities in distilling the jurisprudence in this area. If this rule applies to international sales, is it sensible to have a different rule for domestic sales? - See also Balfour v. Balfour (1919). In the final analysis, it would appear that the likely existence of an internal error in pricing was clearly within his contemplation.